When a couple in Maryland gets divorced, it is not unusual that the Maryland divorce court orders one spouse to pay (all or part of) the attorneys’ fees of the other spouse in prosecuting or defending aspects of the divorce. See H. H., v. J. T., (Unreported) Case No. 1105, Sept. Term, 2024 (Appellate Court of Maryland 2025). When at least some of the litigated issues involve custody or child support, the general rule is that fees and costs shall be awarded when they “… are just and proper under all the circumstances.” And to help with that determination, Maryland Family Code, § 12-103(a), mandates that a court consider the following:

• The financial status of each party
• The needs of each party and
• Whether there was substantial justification for bringing, maintaining, or defending the proceeding

Section 12-103(c) states that if there is an absence of substantial justification of a party for prosecuting or defending the proceeding or some aspect of the proceedings, then attorneys’ fees and costs SHALL be awarded. The Maryland divorce court is also tasked with making a determination about the reasonableness of the fees. The stated purposes of Section 12-103 and related rules are to discourage “scorched earth” litigation tactics and to encourage speedier resolution of divorce proceedings.

A good example of how this works in practice comes from the case linked above. In that case, during their divorce, both spouses contended over custody and child support obligations for their son. With respect to the custody/support issues, the court then said that both parties were certainly justified in pursuing child custody and child support. However, the court held that the father was NOT justified in the manner in which he litigated the issues. The court criticized the father for several tactics including:

• Numerous examples of subpoenas sent seeking evidence that was not relevant to the case — examples — subpoenas sent to pharmaceutical companies that worked with Mother’s employer but with which Mother had no affiliation
• Sending subpoenas that sought relevant information, but in a manner that was “quite overblown considering the length of the marriage and the issues at hand” — example included sending subpoenas to the Mother’s parents asking for substantial records of their small business, seeking their personal financial records, and asking for their EZ Pass travel records
• Filing criminal charges against Mother’s father, which were not pursued by the State’s prosecuting attorneys
• Filing a separate civil case against the Mother
• Telling the Mother that he would “destroy” her through litigation

Based on this and more, the divorce court stated that the Father had engaged in a scorched-earth overly aggressive litigation strategy throughout the divorce proceeding. As such, awarding the Mother $100,000 in contribution to what she had spent on attorneys’ fees was justified. The court also considered the financial status of the parties. The court noted that the Father earned two-thirds of the couple’s combined income. This also justified the award of attorneys’ fees. On appeal, the higher court approved the lower court’s ruling stating that the “court’s decision was neither arbitrary nor clearly wrong.”

Contact Waldorf, Maryland Family Law and Child Custody Lawyer Robert Castro Today

This article has been provided by the Law Office of Robert Castro. For more information or questions, contact our office to speak to an experienced Maryland family law and divorce lawyer at (301) 870-1200. We are Waldorf, MD, Family Law lawyers. Our address is 2670 Crain Highway, Waldorf, MD, 20601.