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Unraveling a relationship, both the financial and emotional entanglements, by way of litigation often requires a court to make decisions regarding the most personal and intimate affairs of the parties. Tensions run high, feelings are hurt, and both parties often feel that they are on the receiving end of a bad deal. In Pennsylvania, generally, court conferences, discovery and hearings often follow the filing of a divorce complaint. When divorces include custody of children and requests for support, the parties can find themselves in court numerous times to resolve issues that they are unable or unwilling to settle between themselves. The parties usually present the court with two completely different versions of the same story, and the court must sift through the material presented in an effort to achieve as equitable a solution as possible, especially when there are children to protect. While it is true that the threat of paying attorney fees can often influence a litigant’s behavior, Julie A. Auerbach, who is arguing the other side of this issue, requests relief for which the rules already provide. Auerbach’s blanket statement that “the courts have an obligation to rein in these loose cannons to protect the innocent opposing party” is a surprising one coming from a family law attorney. As every family lawyer knows, there are very few truly “innocent opposing parties.” In a divorce that could last two years, or even longer, the thought of shifting counsel fees back and forth every time a petition is filed in an effort to exert control over conflicting spouses would only make the process more cumbersome. Additionally, the difference in price among lawyers could make the shifting of fees even more inequitable. In Philadelphia, the difference in hourly rates among lawyers could be hundreds of dollars. The party who chose a more economical lawyer could be directed to pay the expensive fees of a lawyer that he or she did not choose. Under the rules, the court has the power to award attorney fees after a review of the relevant factors. Even if the court were to award fees more liberally, the payor’s ability to pay and the requesting party’s financial resources would be taken into consideration. The practical effect of liberally awarding fees would undoubtedly be in favor of financially dependent spouses. Even if a financially dependent spouse were at fault, in the interests of equity, especially if there are children involved, it is doubtful that the court would require that spouse to pay the fees of the party with more resources, even if that spouse were the so-called innocent party. Auerbach opines that the shifting of fees would deter future litigation. I submit that it would do just the opposite. A party burned by an attorney fee award would undoubtedly go on the offensive, waiting in the wings for the other litigant to provide an opportunity for his or her own attorney fee award. The liberal availability of the shifting of fees would then be the catalyst fueling the thirst for adversity. If parties are going to behave badly, the threat of attorney fees might do little to control that behavior and could, indeed, make a bad situation worse.

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