Family Code 6344 May Give the Winner Attorney's Fees in a Domestic Violence Action

Family Code 6344 may pay the winner, but what must you prove to get it?

Family Code 6344 is the California Family Code section that deals with reimbursement or payment of attorney's fees to the prevailing party in a domestic violence restraining order action. Let us take a closer look at section 6344.

What does Family Code 6344 state?

Family Code 6344 states the following.

(a) After notice and a hearing, a court, upon request, shall issue an order for the payment of attorney's fees and costs for a prevailing petitioner.

(b) After notice and a hearing, the court, upon request, may issue an order for the payment of attorney's fees and costs for a prevailing respondent only if the respondent establishes by a preponderance of the evidence that the petition or request is frivolous or solely intended to abuse, intimidate, or cause unnecessary delay.

(c) Before a court awards attorney's fees and costs pursuant to this section, the court shall first determine pursuant to Section 270 that the party ordered to pay has, or is reasonably likely to have, the ability to pay.

In short, Family Code 6344 allows courts to order reimbursement for attorney's fees and costs a party incurred in seeking or defending domestic violence restraining orders.

Who is entitled to receive attorney's fees in a domestic violence case?

For a petitioner (the person asking for the restraining order), Family Code 6344 requires two things.

1. The petitioner must be the "prevailing party" (the one who won the restraining order hearing) and
2. The Court finds the respondent has or is reasonably likely to have the ability to pay the fees.

For a respondent (the person against whom the restraining order was requested), Family Code 6344 requires three things.

1. This time, the respondent must be the winner (prevailing party).
2. The respondent shows the petitioner's request (what the petitioner accused the respondent of) was either frivolous (meaning it did not have merit) or intended to abuse, intimidate, or cause unnecessary delay and
3. The Court finds the petitioner has or is reasonably likely to have the ability to pay the fees.

That means the respondent will have a more challenging time getting fees from the petitioner. It is not enough to win. That second layer comes down to knowingly false allegations or allegations made in bad faith. The legislature's language is confusing. For example, is there a time when a request is frivolous but not intended to abuse, intimidate, or cause unnecessary delay? The code section is too verbose and it would have been simpler to just stop at frivolous.

How do I know if I am the prevailing party?

Family Code 6344 does not define what it means to prevail in a domestic violence case.

We believe to prevail, you must receive the substantial benefit of the order you sought.

If you are the Petitioner, you are the party who sought the domestic violence restraining order.

You will prevail in your case if the court grants the substance of your requests. Substance does not always mean everything you requested although what it means may vary from one judge to another.

For example, if you sought a five-year restraining order, but the court gave you a three-year restraining order, we believe you are still the prevailing party.

However, what happens if the court gave you a three-month restraining order? It may be more difficult to argue you are the prevailing party, although you do have the argument available to you because you received a restraining order.

If you are the Respondent, you are the party opposing the request for a domestic violence restraining order. The same analysis applies. This is where the court again has discretion as to what "prevailing party" means and that makes the answer factually specific to the case.

What fees are available to a person who prevails in a domestic violence restraining order action?

Family Code 6344 references "attorney's fees and costs." This includes the money paid to an attorney for representation (fees) and money paid as part of the litigation process that is separate from fees (costs) incurred in connection with the domestic violence restraining order case.

Let us examine how you would present your case, depending on which side you are on.

You are the Petitioner and the prevailing party.

Let us assume you prevailed on your request for a domestic violence restraining order. The court issued a 3-year (or 5-year) restraining order protecting you from the Respondent.

The Court will look at your income and expenses, likely through your submission of an Income and Expense Declaration. You may testify at the hearing regarding your ability to pay for fees compared to that of the Respondent.

Whether the court will order the Respondent to pay your fees and how much will depend on an analysis by the court of several factors.

What does the court look at when evaluating the ability to pay fees and the other factors?

We believe the court will look at the following factors.

1. Income, including the type of income (wages, retirement, business income, etc.);
2. Expenses and debts, including monthly recurring household debts, credit card debt, tax debt, car loans, etc., and any associated installment payments;
3. The age and health of the parties; and
4. Assets, especially liquid assets, include money with financial institutions.

No one knows your circumstances better than you do. Therefore, you must present your case with sufficient evidentiary support. Give the Court the information it needs to make a favorable ruling. Support your case by providing statements evidencing your finances.

What does the prevailing Respondent argue?

If you are the prevailing Respondent, and if you believe the other party made knowingly false allegations, misused the domestic violence restraining order procedures to obtain a custody advantage, exclusive use of the home, or as a setup to avoid paying spousal support, you should argue those points in support of your request for fees.

If it is true, point out that the other party paid his or her attorney's fees from his or her funds, which means he or she can afford it.

Use the same analysis above regarding the factors the court should consider in awarding fees, as you would if you were the prevailing Petitioner.