Defending Against Attorney's Fees Requests
Learn how to defend against attorney's fee requests by your spouse
Defending Against Attorney's Fee Requests by Your Spouse
I do not use the word never very often but I will use it here. It is never a good idea to try and oppose an attorney fee request while self-represented.
Defending against an attorney fee request is complex in divorce and parentage cases. While the law attempts to make such fee requests simple, our California appellate and Supreme Court decisions as well as the California Rules of Court show us there is nothing simple about this process.
On this page, we will discuss a few ways to defend against the attorney fee request, depending of course on the basis for the fee request.
Defending against need-based requests
Need-based request are usually pursuant to Family Code 2030 through 2032 in divorce cases, both pre and post judgment, and Family Code 7605 in parentage cases.
The more common ways to defend against fee requests in such circumstances are:
- The requesting party does not have a need for attorney fees,
- The defending party does not have the ability to pay attorneys fees,
- There is no disparity in access to funds for representation,
- The requesting party violated Family Code 271 and has unnecessarily increased the litigation fees and costs, or
- The requesting party failed to follow the required procedural steps to seek attorney fees and costs
The above are not all of the ways to defend a fee request but some of the more common.
Defending against a sanctions based request
Family Code 271 is a sanctions based fee statute. Family Code 271 punishes bad behavior, specifically behavior that runs afoul of California's policy to act reasonably, compromise reasonably and resolve family law cases.
Need and ability to pay are irrelevant so those are not good defenses
However, Family Code 271 does provide a defense if the opposing party can show an attorney fee award would cause an unreasonable financial burden on him or her. While there is no set definition of unreasonable financial burden, the opposing party should be ready to show more than an inability to pay. The opposing party should be ready to show an attorney fee award would create a significant financial hardship.
Show the conduct did not violate Family Code 271
Another common defense is to simply show why the opposing party did not engage in conduct that violated Family Code 271. By showing the positions he or she took were reasonable or, at a minimum, were not unreasonable may be a useful defense.
Lack of notice is a defense to a Family Code 271 request
A party defending such a sanctions based request can also show he or she did not receive reasonable notice. A party who seeks a sanctions request cannot just drop the request on the other party's lap. There must be reasonable notice and what reasonable notice means may vary from case to case. However one thing is clear. The notice must be specific regarding the conduct complained of and the amount sought.
Ready for more reading?
The above is not the only ways a party may seek attorneys fees but they are the two more common ways and we hope this page helped you get a better general understanding of how a party may oppose fee requests.
We did not discuss on this page procedural attacks to the request because these very technical defenses require actual one-on-one advice and nothing on this page is intended as legal advice for any specific situation.
Check out the additional articles we link below. The guides on Family Code 2030 and 271 are must reading for any spouse who expects attorney's fees to be an issue in a divorce or even post divorce judgment.