The law in Virginia certainly allows the court to make an award of attorney’s fees in favor of either party. It is an issue for the court, it may be done in a preliminary stage of the proceeding or it may have to go forward at a final hearing or in some circumstances, maybe reserved for a hearing after the conclusion of the divorce litigation itself.
In the circumstance where the parties have come to an agreement, it is quite common that both parties will agree that they will pay their own attorney’s fees and this is part of the agreement and negotiation process. There is case law in Virginia that reflects that if a party is awarded spousal support that the court should make some provision for the payment of attorney’s fees by the support paying party.
That law has been in effect in Virginia for about 30 years and while it has obviously had some bits of pieces and circumstances in which the court found it inappropriate, the general proposition is still good law. The court will usually consider the reasonableness of the parties and whether or not issues that ultimately are litigated have in fact been properly litigated, that is to say that there is such either a complex issue or that the matter has to be dealt with by the court as a matter of complexity that the matter would then have to be determined. If that court makes that finding that the matter needed to be determined by the court, then the court will generally not award either party attorney’s fees. If the court thinks the one party is trying to utilize the system to increase cost or create delay in the process, then the court will be more likely to award the innocent party some portion of their attorney’s fees.