Family Law Attorneys Fee Request Based on Need & Ability to Pay
There are two ways to seek attorneys fees in a California divorce case. The first is the code sections that start with Family Code 2030. Family Code 2030 through 2032 are the heart of what family law attorneys and judges typically call a “need based” fee award because the code section states that:
“the court shall ensure that each party has access to legal representation, including access early in the proceedings, to preserve each party’s rights by ordering, if necessary based on the income and needs assessments, one party… to pay to the other party, or to the other party’s attorney, whatever amount is reasonably necessary for attorney’s fees and for the cost of maintaining or defending the proceeding during the pendency of the proceeding.”
This code section looks at the incomes of both the husband and wife as well as the assets that each of them has control over and then decides how to achieve “parity” (equality) so that both the husband and wife have equal access to the Court and both can retain their own independent lawyer to represent them.
Family law attorneys utilize these code sections when they represent the spouse who has the lesser income.
Section 2030 of the Family Code creates a level playing field so that one spouse cannot take advantage of the other simply because of an income disparity. These motions (now called “requests for order”) however are not easy to bring and require not just a knowledge of the law but also a specific factual basis in both the spouse’s declaration showing need as well as the attorney’s declaration showing the work that has been completed and which needs to be completed that would justify the attorney fee award. There are also specific forms and certain evidence that must be submitted to create a well presented attorney fee motion. Farzad Family Law’s attorneys have successfully brought and defended against such fee motions and we prevail the far majority of the time.
Family Law Attorneys Fee Request Based on Sanctionable Conduct and Family Code 271
The second way to get attorney’s fees is Family Code 271. This code section doesn’t rely on the “need” of the party requesting it because it looks to award fees against a spouse that has violated the code section’s mandates. Those mandates are:
The court may base an award of attorney’s fees and costs on the extent to which the conduct of each party or attorney furthers or frustrates the policy of the law to promote settlement of litigation and, where possible, to reduce the cost of litigation by encouraging cooperation between the parties and attorneys. An award of attorney’s fees and costs pursuant to this section is in the nature of a sanction.
In other words, Family Code 271 seeks to punish bad behavior. If a spouse in an Orange County divorce case frustrates California’s policy to promote settlement of litigation and unnecessarily drives up litigation costs, that spouse can be sanctioned by the Court for the innocent spouse’s attorney’s fees.
Can that sanction be for 100% of the innocent spouse’s fees? That depends on the violating spouse’s ability to pay and whether the sanctions amount would cause an undue hardship. Put another way, this statute still intends to be fair to both sides by inflicting a punishment but not to the extent that it would financially cripple one party.
When the case has required it, our family law attorneys have filed Family Code 271 attorney fee requests. We have successfully obtained attorney fee orders against spouses who violated this code section and unnecessarily drove up the costs of litigation.
Attorneys Fee Request Against Your Spouse’s Lawyer
That is not a typo. You read it right. While our family law attorneys don’t use it often, there have been instances where our client’s spouse hired a lawyer who simply would not relent with frivolous filings with the Court. So far, we have never had to actually get a ruling on one. Why? Because each time we have filed the motion, the other attorney backed off.
California Code of Civil Procedure 128.7 allows a spouse to seek attorney’s fees against the other spouse’s lawyer when that lawyer files a motion or other document with the Court that is completely frivolous and without merit. Section 128.7 has specific provisions that limit its effect to the most egregious of cases and should not be used on every case where there is a disagreement between the lawyers on the issues. However, in divorce and family law cases where one spouse’s lawyer does file frivolous pleadings or motions, this section can act as a powerful deterrent.
Do You Need Attorney’s Fees or Are You Facing An Attorney Fee Motion?
Most family law attorneys do not properly utilize the Family Code sections that gives their clients rights. We have sat and watched attorney fee motions get granted or get denied because one of the attorneys did not do his or her job. Experience matters. If you need an attorney fee motion or are facing one, our Orange County family law attorneys can help you. Contact us today for an affordable strategy session.