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

Winning a domestic violence restraining order may mean getting your attorney's fees paid back to you

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

To our readers: Family Code 6344 changed effective January 1, 2023. This article has not yet been updated with the changes. We will be updating this article soon with the new code section and analysis. In the meantime, if you want to see the updated code section and the important changes, visit this page: Link to the new code section.


Old article starts here:

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.

If you need help with a domestic violence restraining order, whether you are the person seeking protection or the one falsely accused, contact our family law firm for an affordable strategy session. Our firm represents victims of domestic violence and those falsely accused of domestic violence. We do not represent perpetrators of domestic violence. We have offices throughout Southern California.

What does Family Code 6344 state?

Family Code 6344 states the following.

"(a) After notice and a hearing, the court may issue an order for the payment of attorney's fees and costs of the prevailing party.

(b) In any action in which the petitioner is the prevailing party and cannot afford to pay for the attorney's fees and costs, the court shall, if appropriate based on the parties' respective abilities to pay, order that the respondent pay petitioner's attorney's fees and costs for commencing and maintaining the proceeding. Whether the respondent shall be ordered to pay attorney's fees and costs for the prevailing petitioner, and what amount shall be paid, shall be determined based upon (1) the respective incomes and needs of the parties, and (2) any factors affecting the parties' respective abilities to pay."

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

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

Family Code 6344 requires two things.

  1. You must be the "prevailing party"; and
  2. If you are the Petitioner and you prevail, and you cannot afford your attorney's fees, the court must order the Respondent to pay your fees, if appropriate, based on each of your respective incomes and needs, and any factors affecting the ability to pay.

Family Code 6344 only references the prevailing party as the Petitioner. It does not reference what the court should consider in deciding whether to award attorney fees to a Respondent who successfully defends against the domestic violence allegations. That is where we believe Family Code 270 comes in. We provide you with a link to that section and other helpful articles below.

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 for commencing and maintaining the proceeding." This includes attorney's fees, and costs (money paid as part of the litigation process that is separate from fees) 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. Family Code 6344 states the factors as "1) the respective incomes and needs of the parties, and (2) any factors affecting the parties' respective abilities to pay."

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 and especially liquid assets like money with financial institutions.

No one knows your circumstances better than you do. Therefore, it is important you 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 false allegations, misused the domestic violence restraining order procedures to obtain a custody advantage, exclusive use of the home, or as a set up 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 own attorney's fees from his or her own funds, and that 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.

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