California Divorce Attorney’s Fees
Who Will Pay and How Much?
California divorce attorney’s fees requests are common and Family Courts are used to dealing with them. This article is intended to go through a few of the more common requests for attorney’s fees.
Family Law Attorney’s Fee Request Based on Need & Ability to Pay
One way to seek attorney’s fees in a California divorce is per code sections Family Code 2030 through 2032. These code sections are the heart of what family law attorneys and judges typically call a “need based” fee awards. These code section looks at the incomes of both the husband and wife as well as the assets and money that each of them has control over and then decides how to achieve “parity” so that both the husband and wife have equal access to the Court through legal representation. Family law attorneys utilize these code sections when they represent the spouse who has the lesser income or lesser access to money.
We have written a comprehensive guide on Family Code 2030 through 2032 and we encourage you to read it. It is called Family Code 2030 Attempts to Bring Fairness to the California Divorce Process.
Family Law Attorney’s Fee Request Based on Sanctionable Conduct and Family Code 271
First, you really should read our comprehensive guide on 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. For example, 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.
Attorney’s 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.