Family Code 271 Attorney's Fees and Costs
Learn what Family Code 271 states and does about sanctions
Family Code 271 is one of the most powerful code sections in California family law
Family Code 271 allows for sanctions in the form of attorney's fees and costs when a family law litigant, or his or her attorney, violates its policy. For that reason, such issues usually end up in front of the family law judge.
What does Family Code 271 state? How does section 271 do what it states? How is it applied?
We wrote this informative guide to answer these questions. Nothing in this guide is legal advice about your specific situation.
Family Code 271 has five parts.
As of the date we write this guide, Family Code 271 has five parts to it.
Part One: Notwithstanding any other provision of this code, the court may base an award of attorney's fees and costs on the extent to which the conduct of each party or attorney furthers or frustrates the policy of the law to promote settlement of litigation and, where possible, to reduce the cost of litigation by encouraging cooperation between the parties and attorneys.
Part Two: An award of attorney's fees and costs pursuant to this section is in the nature of a sanction. In making an award pursuant to this section, the court shall take into consideration all evidence concerning the parties' incomes, assets, and liabilities.
Part Three: The court shall not impose a sanction pursuant to this section that imposes an unreasonable financial burden on the party against whom the sanction is imposed. In order to obtain an award under this section, the party requesting an award of attorney's fees and costs is not required to demonstrate any financial need for the award.
Part Four: An award of attorney's fees and costs as a sanction pursuant to this section shall be imposed only after notice to the party against whom the sanction is proposed to be imposed and opportunity for that party to be heard.
Part Five: An award of attorney's fees and costs as a sanction pursuant to this section is payable only from the property or income of the party against whom the sanction is imposed, except that the award may be against the sanctioned party's share of the community property.
The policy behind Family Code 271
The policy behind Family Code 271 is simple.
Family Code 271 allows attorney's fees and costs against a party in a divorce, legal separation, annulment or parentage case when that party's conduct "frustrates the policy of the law to promote settlement of litigation and, where possible, to reduce the cost of litigation by encouraging cooperation between the parties and attorneys."
It is designed to punish bad behavior. In that respect, Family Code 271 also exists to promote settlement and reasonable compromise.
Notice duration pursuant to Family Code 271
Family Code 271's notice section states:
An award of attorney's fees and costs as a sanction pursuant to this section shall be imposed only after notice to the party against whom the sanction is proposed to be imposed and opportunity for that party to be heard.
The code does not specifically give a minimum mandatory notice requirement.
So what is proper notice? It varies from case to case and is a case specific question although some California appellate cases have provided general guidelines on what is proper notice.
The more notice, the better.
Notice by request for order
Notice is sometimes by a formal request for order, filed with the court and served on the other party.
This request for order sets a hearing date where both parties must appear, put on evidence and argue Family Code 271's merits.
Often, an attorney will group this section 271 request for order with other requests such as a Family Code 2030 and 2032 attorney fee request or even with a support request, if that is also at issue.
Notice without a request for order
Other times, a Family Code 271 notice is a detailed notice filed with the court and served on the other party and gives the other party specific notice the noticing party intends to seek sanctions at a future hearing date already set, such as, for example, a trial. Learn more about California divorce trials.
What is the sanction to which Family Code 271 refers?
Family Code 271 allows sanctions in the form of attorney's fees and costs.
So, if a party to a family law case incurred $10,000 in attorney's fees and $5,000 in cost because the other party violated Family Code 271's policy, the party who seeks fees and costs may ask the court for an order against the other.
From what source can Family Code 271 sanctions be paid?
The code specifically states:
An award of attorney's fees and costs as a sanction pursuant to this section is payable only from the property or income of the party against whom the sanction is imposed, except that the award may be against the sanctioned party's share of the community property.
Pretty self explanatory, right?
Family Code 271's notice content
Family Code 271 notice, whether by request for order that sets a hearing date or by other notice, must be specific.
California appellate cases have stated the noticing party should identify the specific grounds and specific conduct that party claims violated Family Code 271.
The notice should be directed to the specific party against whom Family Code 271 sanctions are sought.
The notice's detail can be a complicated legal issue and like other aspects of section 271, seek legal advice about your specific situation to determine how specific your notice should be.
Need is not relevant to a Family Code 271 request
Family Code 271 differs from Family Code 2030 and 2032.
Since section 271 is a sanction based request and punishes bad behavior, the code makes a requesting party's "need" for the fees and costs irrelevant.
Therefore, the person who seeks Family Code 271 sanctions does not have to show he or she has a need for the fees and costs requested.
This allows a higher income earner or the person who has a greater access to money to seek Family Code 271 sanctions against the other party.
Is this fair?
At first, some people may think this is unfair.
But think about it logically. If a person were allowed to get away with unreasonable conduct during a family law case and there was no recourse to seek fees and costs against that person even though their unreasonable, reckless or even malicious behavior caused the fees and costs to skyrocket, is that reasonable? Of course not.
California Family Code's public policy requires all parties, regardless of financial status, to behave reasonably throughout a family law case.
"But my lawyer did it" is not a defense
Family Code 271 generally does not allow a party to hide behind the lawyer's misconduct and escape the sanction because his or her lawyer engaged in the misconduct.
What does Family Code 271's "unreasonable financial burden" standard mean and is it the same as ability to pay?
Section 271 states the following:
In making an award pursuant to this section, the court shall take into consideration all evidence concerning the parties' incomes, assets, and liabilities. The court shall not impose a sanction pursuant to this section that imposes an unreasonable financial burden on the party against whom the sanction is imposed. In order to obtain an award under this section, the party requesting an award of attorney's fees and costs is not required to demonstrate any financial need for the award.
Family Code 271 is different from Family Codes 2030 and 2032 in this respect
The above differs from the ability to pay standard often associated with Family Code 2030 and 2032.
If Party A seeks Family Code 271 sanctions against Party B, it is not enough for Party B to argue he or she does not have the ability to pay sanctions. Party B must show the sanction would impose an "unreasonable financial burden" on him or her.
There is no clear, black or white "unreasonable financial burden" definition so, like most things in the Family Code, its interpretation may vary from case to case.
- Must the person who seeks sanctions show there is no such burden?
- Or is the person who opposes sanctions required to show it?
We believe the person who opposes the sanctions must show unreasonable financial burden because we believe it is akin to a defense to the Family Code 271 request, but other lawyers may disagree.
The role settlement offers play in Family Code 271
The general rule is settlement offers are not admissible in civil cases.
However, in family law, settlement offers may be evidence of attempts to reach a reasonable compromise or evidence of a failure to do so.
In that respect, settlement offers may become relevant and admissible evidence in bringing or defending a Family Code 271 sanctions request.
The settlement offers to which we refer are outside the family law mediation process.
Whether settlement offers made during mediation are admissible for the above purpose may be a disputed issue and the mediation confidentiality may not allow using settlement offers made in mediation in a subsequent section 271 request.
There may be ways to get around this issue. An experienced family law attorney you hire can explain to you whether that is an option in your case.
The Family Code 271 request before judgment
Before judgment, a Family Code 271 request usually becomes part of a formal request for order, as we explained above. That means either party may file a request for order and have the issue heard before a trial.
Some judges hesitate to award Family Code 271 attorney's fees before trial. This has never made sense to us.
If a judge allows a party to engage in unreasonable conduct and significantly increase the other party's attorney's fees during the process without consequence, what is the point of Family Code 271?
A family law judge should be willing and open-minded to awarding Family Code 271 attorney's fees against the party at any time during the case.
That is what the code allows and there is no limitation within the code or California case law that permits a judge to arbitrarily punt this issue to a trial.
The Family Code 271 request at trial
The Family Code 271 request may also be heard at trial.
Sometimes this can be while other issues are heard. Sometimes this can be after every issue is heard.
The reason the second scenario occurs is the judge may want to hear all the evidence and make his or her rulings before deciding who was unreasonable.
The end result can help the judge understand who took reasonable versus unreasonable positions.
The Family Code 271 request, post judgment
California Family Code 271 is fair game after judgment including, for example, during modification requests.
Child custody, parenting time, child support and alimony are just some of the issues that may be modified post judgment. If a party takes unreasonable positions and causes litigation that should have been avoided, Family Code 271 may be used as a sanction against him or her.
The amount of notice, the notice content, whether you should seek Family Code 271 sanctions or how to defend such a request against you are too complex to handle on your own.
This article is not legal advice and you should not rely on it for your specific case.
Instead, consult with an experienced family law attorney who handles matters in your California County and has experience in bringing and defending Family Code 271 sanctions requests.
If your matter is in any of the seven Southern California counties, you may contact us for an affordable strategy session.
Family Code 271 is not the only basis to seek sanctions in a divorce. We provide you with more reading with the links below.