Attorney’s Fees. New risks in divorce or custody cases?

By Tippi Jarman

Civil litigation can expose a losing party to paying the other party’s attorney’s fees. This is well known. However, the Idaho Supreme Court recently announced a new rule of law regarding attorney’s fees which will take effect on March 1, 2017. In the case of Hoffer v. Shappard, 2016 Ida. LEXIS 290 (September 28, 2016), the Idaho Supreme Court stated that Idaho courts will soon apply a different standard for attorney fees under Idaho Code Section 12-121. This new standard allows Idaho courts to award attorney fees under Idaho Code Section 12-121 “when justice so requires”. This is a significant change from the current standard of law under this statute. The current standard allows Idaho courts to award attorney fees under Idaho Code Section 12-121 only when the case was “brought, pursued or defended frivolously, unreasonably or without foundation”.

The good news is that the Idaho Supreme Court has long held that “where a specific statute exists for awarding attorney fees, the specific statute will control over the more general statute”. Bell v. Eagy, 2015 Ida. App. Unpub. LEXIS 18, (2015); citing First Fed. Sav. Bank of Twin Falls v. Riedesel Eng’g, 154 Idaho 626, 632, 301 P.3d 632, 638 (2012). This is important in family law cases because Idaho Code Section 32-704 allows for the award of attorney fees to a party maintaining or defending a divorce or custody case. The Idaho courts take into consideration certain specific factors on whether to award fees under this more specific statute, rather than the looser standard of “when justice so requires”.

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