Family Code 2030 and Attorney's Fees Orders in a Divorce
Learn how Family Code 2030 works with "need" for and "ability to pay" attorney's fees
Top 15 Ways Family Code 2030 Brings Fairness to California Divorces
Family Code 2030 is one of the most important California family laws we have
Family Code 2030 is intended to bring fairness to the California divorce process. It is designed to ensure that both the husband and wife have equal access to the family law courts through legal representation. Family Code 2030 is also one of the most misunderstood and misused code sections.
This guide on Family Code 2030 will help spouses better understand this code section and how it is used in divorce, legal separation and annulment matters.
This guide is not legal advice. It is not intended to apply to your specific situation. Our divorce attorneys offer an affordable strategy session to discuss your situation.
1. What does Family Code 2030 (a) through (d) state about attorney's fees?
We are not going to copy and paste Family Code 2030's entire text here. We put the entire code section at the end of this guide if you want to read every word of it. Instead, we summarize its main points.
A. Access to representation and preservation of each spouse's rights is a must.
Family Code 2030 applies to divorce, annulment or legal separation cases and any post judgment family law matter related to those three types of actions. The code states the Family Court must:
1. Ensure that each party has access to legal representation;
2. Preserve each party's rights by ordering whatever amount is reasonably necessary for attorney's fees and for the cost of maintaining or defending the pending action; and
3. Make these orders based on the income and needs of the parties.
B. The Court must give a statement of reasons for its decision.
Family Code 2030 further states the Family Court must state its reasons ("findings") on the following issues when it rules on such an attorney fee request:
1. Whether an attorney fee and cost award is appropriate;
2. Whether the parties have a disparity in access to funds to hire an attorney; and
3. Whether one party is able to pay for legal representation of both parties.
Family Code 2030 states if the court makes findings that show this disparity and ability to pay, the court must make an attorney fee and costs order.
C. Self represented spouses have rights.
Family Code 2030 allows a self represented party who does not have the financial ability to hire an attorney to ask the court to order the other party to pay for the fees. The Family Court can make that order if the other party has the financial ability to pay a reasonable amount. This payment is intended to allow the self represented party to hire a lawyer "in a timely manner" before the proceeding goes forward.
D. Fees can be awarded for services before or after the case starts.
Family Code 2030 allows the Family Court to award attorney fees and costs for legal services rendered before or after the case commences.
E. The Family Court can increase or modify the initial attorney fee award.
Family Code 2030 also states the Family Court must augment (increase) or modify the initial attorney fee award it made. The Court can do this if reasonably necessary to prosecute or defend the proceeding, any related proceeding and even after an appeal's conclusion.
F. Sometimes, the Family Court can award fees against a non-party.
Finally, Family Code 2030 allows the Family Court to order fees against a party "who is not the spouse of another party to the proceeding." This amount however is limited to the amount "reasonably necessary to maintain or defend the action on the issues relating to that party."
2. How do Family Code sections 2031 and 2032 relate to a Family Code 2030 attorney fee request?
Family Code 2031 and 2032 work together with Family Code 2030. Think of them as a set. Again, we are not going to just copy and paste the entire code section here. If you want to read the entire text of Family Code 2031 and 2032, we placed it at the end of this guide.
Family Code 2031
Family Code 2031 states a request for a temporary attorney fee and cost order must be made by motion on notice or by an order to show cause. The California legislature hasn't gotten around to updating this statute because, now days, motions and orders to show cause for attorney fees have been replaced with something called a "request for order." It's the same thing under a different name and different forms.
Family Code 2031 allows this request for:
- Making an attorney fee or costs request;
- Augmenting (increasing) an attorney fee or costs award; or
- Modifying an attorney fee or costs award.
Family Code 2031 states the Family Court must make the ruling "within 15 days of the hearing on the motion or order to show cause."
Family Code 2031 even allows such a request to be made orally, in open court, at the following times:
- "At the time of the hearing of the cause on the merits"; or
- "At any time before entry of judgment against a party whose default has been entered pursuant to Section 585 or 586 of the Code of Civil Procedure."
A similar 15 day rule applies that states the Family Court must rule "on any motion made pursuant to this subdivision within 15 days and prior to the entry of any judgment."
Family Code 2032
For some reason, the California legislature decided to enact Family Code 2032 as a separate code section from Family Code 2030 and 2031 and add the terms summarized below. Family Code 2032 is important to understanding 2030 and 2031.
Family Code 2032 states the attorney fee and cost award should be "just and reasonable under the relative circumstances of the respective parties." Family Code 2032 explains this through the following language: "The need for the award to enable each party, to the extent practical, to have sufficient financial resources to present the party's case adequately, taking into consideration, to the extent relevant, the circumstances of the respective parties described in Section 4320." Family Code 4320 deals with spousal support. We will discuss its relevance to an attorney fee request later.
Family Code 2032 states just because the person requesting attorney fees and costs has the "resources" to pay his or her own attorney's fees does not automatically mean he or she won't get an award for it from his or her spouse. The code states that is just one factor. The Family Court's job is to apportion the litigation's overall cost "equitably" between the parties.
Family Code 2032 also states the court can order attorney fees and costs from "any type of property, whether community or separate, principal or income." That is critical and we discuss this more below.
Family Code 2032 has specific provisions regarding complex cases.
Family Code 2032 also states that either party can, before the ultimate hearing, request the court "make a finding that the case involves complex or substantial issues of fact or law related to property rights, visitation, custody, or support." The code states this must be made by a noticed motion. That means a request for order has to be filed. If the court agrees, it can then "determine the appropriate, equitable allocation of attorney's fees, court costs, expert fees, and consultant fees between the parties." The Family Court has a lot of power here. It can order "the allocation of separate or community assets, security against these assets, and for payments from income or anticipated income of either party for the purpose described in this subdivision and for the benefit of one or both parties."
Family Code 2032 even allows the Family Court to appoint a referee per Code of Civil Procedure 639 "to oversee the allocation of fees and costs." A referee is usually a retired judge or experienced attorney who is assigned to oversee certain parts of a case and report back to the court.
Let's break down some of the terms Family Code 2030 uses, so we can better understand them.
3. What does Family Code 2030 mean by each party having access to legal representation?
Access to legal representation means access to a lawyer. Family Code 2030 requires this access to take place. Divorce and family law cases are not supposed to be a war of attrition such that one spouse who has significantly more income or access to money can beat up the other spouse in the litigation process.
4. How does Family Code 2030 preserve each party's rights by ordering attorney fees and costs?
Access to a lawyer is supposed to level the playing field. It is a rare situation that a self represented spouse will have the same knowledge and ability to advocate on his or her own behalf on the same level as a highly skilled family law attorney. Self represented spouses don't know the in's and out's of the California Family Code or the rules of procedure (there are lawyers we have gone up against who call themselves family law attorneys who don't even have such knowledge). With experienced and skilled representation, California Family Code 2030 better preserves a spouse's rights.
5. What is considered "reasonably necessary" for attorney's fees and costs?
Family Code 2030 is not intended as a blank check to attorneys. The attorney fees and costs must be reasonably necessary to litigate the issues in the divorce, legal separation or annulment case.
6. What does Family Code 2030 mean by disparity in access to funds to hire an attorney?
The word disparity is important and many times forgotten in Family Code 2030 attorney fee requests. This also relates to what we wrote about Family Code 2032 that just because a spouse who requests attorney fees and costs has the resources to pay his or her own attorney's fees does not mean he or she should not get an award for fees and costs against his or her spouse.
California appellate cases have held that the difference between one spouse's ability to pay versus another spouse's ability to pay is an important part of the analysis. One case called Marriage of Sorge stated that just because the wife could pay her own attorney's fees didn't mean the husband should escape paying a contribution when the wife's liquid assets were over $7 million and the husband's were $64 million. Understand the analysis? Husband had far more access than the wife did even though wife could pay her own fees.
7. Why do Family Code 2030 - 2032 reference Family Code 4320, which deals with spousal support?
First, it is important to understand that Family Code 4320 is only considered "to the extent relevant." That means if certain parts of Family Code 4320 don't matter to an individual case, those parts may be disregarded.
Second, we write about Family Code 4320 in detail in our California spousal support guide. Please check it out as it is a comprehensive overview of spousal support.
Family Code 4320 is the measure of the marital standard of living. Understanding the marital standard of living in a divorce or legal separation case helps gauge spousal support and also helps gauge the money available to pay toward fees after payment of support. This is especially important when the source of attorney's fees may be a spouse's income. There is only so much money to go around.
Family Code 4320 also helps the Family Court better understand the estate being divided, which includes the assets and debts. How much of the assets are liquid and available versus tied up in real estate or other sources that are not easily accessible? How much debt exists against those assets? Considerations like this give the Family Court the big picture and allow it to look at available sources for attorney's fees.
8. Why is a Family Code 2030 - 2032 request important for the spouse who wants his or her attorney's fees paid by the other spouse?
Money is power and if one spouse has significantly more access to money than the other spouse, the wealthier spouse can bully the other spouse. This can happen in the litigation process and leave the less wealthy spouse vulnerable. Family Code 2030 - 2032 is intended as the equalizer. It gives that spouse the ability to request and hopefully obtain attorney's fees and costs so the family law case can proceed forward fairly and reasonably with both sides properly represented.
9. How does the spouse requesting fees per Family Code 2030 - 2032 bring such a request to the court's attention?
Family Code 2031 lays out options for an oral request. While that does happen, it is in our experience the exception and not the norm. Self represented spouses should definitely use this method if they have an immediate need for legal representation and don't have immediate access to money to hire an attorney.
The more common method is to file a request for order. The request for order is a set of forms and one or more declarations under penalty of perjury. Once property filed, the Family Court will assign a hearing date, time and department. That request for order must then be served on the other spouse or lawyer.
10. Does the Family Court really order all of a requesting spouse's attorney's fees and costs to be paid?
The Family Court has the discretion to order reasonably necessary attorney's fees and costs. Can that be all of the requesting spouse's fees? Yes. Can it be some or very little? Yes. It all depends on the case's specific facts. Lazy, shot-gun approaches to attorney fee requests usually fail because the requesting spouse doesn't give the Family Court enough information on issues such as:
- The exact amount of attorney's fees sought,
- The amount of costs and expenses sought, such as for expert witnesses as one example,
- The specific factual reasons for the attorney fee request including the amount of time already expended on the matter and the amount of future time expected to be expended?
- An explanation of why the fees requested and the time estimated is reasonable.
11. From what sources do Family Code 2030 - 2032 allow attorney's fees to be paid?
Family Code 2030 and 2032 taken together allow for fees to be paid from community property, separate property, principal or earnings. In short, it can be paid from nearly everything. There is one exception. There is case law that suggests an attorney fee award pursuant to Family Code 2030 may not ordered against a retirement plan. Does that apply to every situation? That is unclear and an attorney's advice is important.
12. How do Family Code 2030 - 2032 affect a spouse's agreement with his or her lawyer?
Family Code 2030 orders are intended to eliminate disparity. However, they are not intended to create a windfall. The spouse requesting attorney fees typically has a retainer contract with his or her lawyer. The attorney fee award, if one is made, either pays the spouse or the attorney for the fees incurred or expected to be incurred.
13. How does the spouse opposing an attorney fee request per Family Code 2030 - 2032 explain his or her opposition?
Opposing an attorney fee request made per Family Code 2030-2032 requires diligence. Not wanting to pay is irrelevant. What matters is showing the court the requesting spouse does not have a need, there is no disparity or the spouse opposing it doesn't have the ability to pay. The opposing spouse can also show the amount requested is unreasonable or unnecessary. These are only some of the proper reasons to oppose a Family Code 2030 request.
The paperwork that comprises the opposition includes certain judicial council forms, the opposing spouse's declaration and generally a declaration from that spouse's attorney. An attorney's assistance and/or representation is important.
14. What are some tips for a spouse requesting attorney's fees per Family Code 2030 - 2032?
Here are some general tips for the spouse that makes the Family Code 2030 request:
- Hire an experienced family law attorney to make the request on your behalf. It can make a significant difference when the paperwork is done correctly.
- Don't overreach or understate the need. Ask for a reasonable amount, not high and not low.
- Your declaration should go into your need, the disparity and the other spouse's ability to pay.
- If you are also receiving support (child support, spousal support or both), factor that into the net disposable income equation. You may tell the Family Court that you want attorney's fees to be paid from your spouse's income. But does your spouse also pay you support from that same income? Have you figured out what your net disposable income is compared to your spouse when you factor in support? Is it still very different? Or close to the same?
- Don't assume income is the only source. Property can be sold to pay for attorney's fees. Accounts can be accessed. Stocks can be sold. Home equity lines of credit can be used. These are just a few of many examples.
15. What are some tips for a spouse opposing an attorney fee request per Family Code 2030 - 2032?
Here are some general tips for the spouse that opposes the Family Code 2030 request:
- Similar to our tip, above, please hire an experienced family law attorney.
- If there is a clear disparity in income or access to funds and it is likely the family court will order fees against you, consider making a reasonable offer to avoid spending thousands of dollars in opposing the request.
- If your spouse's fees are procedurally or substantively defective, strategize carefully with your lawyer as to how much of that you point out in your opposition paperwork versus bringing it up at the hearing. This depends in part on the California county your case is pending and the style of the court and judges there.
- If there is no source from which attorney's fees can be paid, point that out clearly in your opposition.
- If you are paying spousal and/or child support then do the math as to why your net disposable income is not that different from that of your spouse.
- If you are not paying spousal and/or child support but such a request is pending or likely coming, point that out.
- Just telling the court you cannot afford to pay your spouse's attorney fees may not be enough unless you have evidentiary support. Show the Family Court in your paperwork and at the hearing with proper, admissible evidence, why your position is actually fact and why that disparity or access your spouse claims exists actually does not. Be prepared to explain to the court how you are paying your own attorney's fees.
Did you enjoy what you just read?
We hope you enjoyed this guide on Family Code 2030.
If you have a divorce, legal separation or annulment matter, you may contact us for an affordable strategy session. While this article focused on attorney's fees per Family Code 2030 through 2032, there are other ways to obtain attorney's fees in a divorce. Check out our article on Family Code 271 as another example.
And finally, as promised earlier in this guide, below is the full text of Family Code 2030, 2031 and 2032 as of the date we write this guide in 2016. Family Code sections may get amended from time to time so do not assume what you read below is the updated code section. This article is current as of the date it was written.
The full text of Family Code 2030, 2031 and 2032
Full text of Family Code 2030:
2030. (a) (1) In a proceeding for dissolution of marriage, nullity of marriage, or legal separation of the parties, and in any proceeding subsequent to entry of a related judgment, the court shall ensure that each party has access to legal representation, including access early in the proceedings, to preserve each party's rights by ordering, if necessary based on the income and needs assessments, one party, except a governmental entity, to pay to the other party, or to the other party's attorney, whatever amount is reasonably necessary for attorney's fees and for the cost of maintaining or defending the proceeding during the pendency of the proceeding.
(2) When a request for attorney's fees and costs is made, the court shall make findings on whether an award of attorney's fees and costs under this section is appropriate, whether there is a disparity in access to funds to retain counsel, and whether one party is able to pay for legal representation of both parties. If the findings demonstrate disparity in access and ability to pay, the court shall make an order awarding attorney's fees and costs. A party who lacks the financial ability to hire an attorney may request, as an in pro per litigant, that the court order the other party, if that other party has the financial ability, to pay a reasonable amount to allow the unrepresented party to retain an attorney in a timely manner before proceedings in the matter go forward.
(b) Attorney's fees and costs within this section may be awarded for legal services rendered or costs incurred before or after the commencement of the proceeding.
(c) The court shall augment or modify the original award for attorney's fees and costs as may be reasonably necessary for the prosecution or defense of the proceeding, or any proceeding related thereto, including after any appeal has been concluded.
(d) Any order requiring a party who is not the spouse of another party to the proceeding to pay attorney's fees or costs shall be limited to an amount reasonably necessary to maintain or defend the action on the issues relating to that party.
(e) The Judicial Council shall, by January 1, 2012, adopt a statewide rule of court to implement this section and develop a form for the information that shall be submitted to the court to obtain an award of attorney's fees under this section.
Full text of Family Code 2031
2031. (a) (1) Except as provided in subdivision (b), during the pendency of a proceeding for dissolution of marriage, for nullity of marriage, for legal separation of the parties, or any proceeding subsequent to entry of a related judgment, an application for a temporary order making, augmenting, or modifying an award of attorney's fees, including a reasonable retainer to hire an attorney, or costs or both shall be made by motion on notice or by an order to show cause.
(2) The court shall rule on an application within 15 days of the hearing on the motion or order to show cause.
(b) An order described in subdivision (a) may be made without notice by an oral motion in open court at either of the following times:
(1) At the time of the hearing of the cause on the merits.
(2) At any time before entry of judgment against a party whose default has been entered pursuant to Section 585 or 586 of the Code of Civil Procedure. The court shall rule on any motion made pursuant to this subdivision within 15 days and prior to the entry of any judgment.
Full Text of Family Code 2032
2032. (a) The court may make an award of attorney's fees and costs under Section 2030 or 2031 where the making of the award, and the amount of the award, are just and reasonable under the relative circumstances of the respective parties.
(b) In determining what is just and reasonable under the relative circumstances, the court shall take into consideration the need for the award to enable each party, to the extent practical, to have sufficient financial resources to present the party's case adequately, taking into consideration, to the extent relevant, the circumstances of the respective parties described in Section 4320. The fact that the party requesting an award of attorney's fees and costs has resources from which the party could pay the party's own attorney's fees and costs is not itself a bar to an order that the other party pay part or all of the fees and costs requested. Financial resources are only one factor for the court to consider in determining how to apportion the overall cost of the litigation equitably between the parties under their relative circumstances.
(c) The court may order payment of an award of attorney's fees and costs from any type of property, whether community or separate, principal or income.
(d) Either party may, at any time before the hearing of the cause on the merits, on noticed motion, request the court to make a finding that the case involves complex or substantial issues of fact or law related to property rights, visitation, custody, or support. Upon that finding, the court may in its discretion determine the appropriate, equitable allocation of attorney's fees, court costs, expert fees, and consultant fees between the parties. The court order may provide for the allocation of separate or community assets, security against these assets, and for payments from income or anticipated income of either party for the purpose described in this subdivision and for the benefit of one or both parties. Payments shall be authorized only on agreement of the parties or, in the absence thereof, by court order. The court may order that a referee be appointed pursuant to Section 639 of the Code of Civil Procedure to oversee the allocation of fees and costs.