ATTORNEY’S FEES AGAINST YOUR SPOUSE

How and when to seek attorney's fees against your spouse in a divorce

Attorney fees against your spouse

Attorney’s Fees Against Your Spouse

This page discusses five common ways to seek attorneys fees against a spouse in a pre judgment divorce, post judgment or in a parentage case. We discuss Family Code 2030 through 2032, Family Code 7605, Family Code 271, Family Code 3652 and Family Code 6344. The Family Code provides for attorney fees in code sections other than the above but the above are the most common basis for a fee request.

Family Code 2030 through 2032

Family Code 2030 through 2032 are need-based requests. A spouse may seek attorneys fees against his or her spouse based on the requesting spouse's need and the other spouse's ability to pay. Such attorney fee requests are most common when there is a disparity and access to money for representation. Spouses may have this disparity due to income differences or access to liquid funds such as money in bank accounts.

Need-based requests like these are common in divorces. California law does not favor wars of attrition, where one spouse has significant more access to representation than the other spouse because of access to money. Therefore, for example, if a wife in a divorce cannot afford an attorney because her husband controls much of the money including their savings, the wife can bring a fee request and ask the court to order fees paid from the savings or other sources.

If both spouses have equal access and one spouse simply earns more than the other, that may also be a basis for an attorney fee request. Support orders may bridge this gap in income. For example, if a wife earns $250,000 per year and the husband earns $50,000 per year but the wife is ordered to pay child and spousal support to the husband, there probably is no longer an income gap between them. That is because the wife's net disposable income is less after payment of support.

A request for order is the typical way to seek attorney fees based on need and ability to pay. But it does not have to be by request for order and California law even allows such requests orally. It is however rare for a spouse to bring an oral request if that spouse has representation. The information the court needs about disparity of income or access typically requires an analysis of each spouse's relative circumstances.

Family Code 7605

Family Code 7605 is very similar to Family Code 2030 through 2032. The main difference is section 7605 applies to parentage cases, which are child custody and child support cases for unmarried parents.

Just about everything we wrote above in the section about Family Code 2030 through 2032 apply here. Section 7605 is also a need-based statute and focuses on disparity in access to funds to retain an attorney.

Family Code 271

Family Code 271 is a sanction based statute whose focus is to punish a spouse or parent that engages in conduct that frustrates California's policy to resolve family law cases reasonably and amicably. Family Code 271 is not a need-based statute. Need is irrelevant. Ability to pay is also irrelevant. Instead, section 271 will order attorney fees against the spouse or parent who violates its provisions unless it finds the sanction would create an unreasonable financial burden on that spouse.

Family Code 271 does not distinguish between a party's conduct and that of his or her lawyer. "But my lawyer did it" is not a defense.

A party may also bring this fee request by a request for order filed with the court, served on the other party and with the hearing ahead. But the code does not require a request for order to seek Family Code 271 attorneys fees and costs. Instead, a party who seeks such fees must give specific notice to the other party by listing specific grounds and specific conduct that violated Family Code 271. In a divorce or parentage case, a party will often give this notice through a document called notice of intent to seek sanctions pursuant to Family Code 271. This notice lays out specific conduct that violated Family Code 271 and the specific sanctions that party seeks.

Family Code 3652

Family Code 3652 is an interesting code section that permits a prevailing party in a support modification hearing to seek attorneys fees and court costs against the non-prevailing party. The code does not state the family law judge must grant fees and costs but instead says the court may include such an award for fees and costs to the winner.

The amount of fees and costs is at the court's discretion.

The code section does not specifically state whether a party who seeks such fees must show need or the other party's ability to pay. By that silence, there is an argument that need and ability to pay are irrelevant to this code section.

Family Code 6344

Family Code 6344 allows the court to order attorney fees in favor of the winner and against the loser in a domestic violence restraining order proceeding. This code section has two parts.

The first part simply says that after a notice and a hearing, the court may issue an order for the payment of attorneys fees and costs of the prevailing party. Thus, for example, if a respondent prevails on a domestic violence restraining order, that respondent can seek fees against the petitioner who sought that restraining order.

Part two states the circumstances in which a petitioner, as a prevailing party, can seek fees and appears to limit that fee request to situations where the court finds it proper based upon the respective incomes and needs of the parties and any factors affecting the parties' respective abilities to pay.

A prevailing party may seek this attorney fee request after a notice and hearing. If the party gave this notice in the petition or the response, the court may rule upon it at the actual domestic violence hearing. A party can also bring this request after he or she prevails on the domestic violence restraining order action but there are timelines for bringing such an attorney fee request and an experienced attorney's advice is important here.

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