Family Code 270 Requires the Court to Determine "Ability to Pay" When Ordering Fees

Family Code 270

How does Family Code 270's "ability to pay" standard apply to fee orders?

Family Code 270 states the following.

"If a court orders a party to pay attorney's fees or costs under this code, the court shall first determine that the party has or is reasonably likely to have the ability to pay."

Analysis of Family Code 270

Family Code 270 is a bit of an odd statute.

First, Family Code 2030 through 2032 already get into a court's duty to evaluate ability to pay when awarding "need based" fees.

Second, Family Code 271 (the sanctions statute) specifically states ability to pay is not a consideration.

We then have various other statutes on attorney's fees that either have their own measure of how the court must evaluate fee requests or the statutes are silent on the issue. These include code sections that award fees if the court makes a finding there is a breach of fiduciary duty and prevailing party fees in support modification hearings and domestic violence restraining order petitions.

Family Code 270 uses the words "under this code." "This code" seems to refer to the Family Code. One way to interpret it is that any code section that does not have its own standard (it is silent on the issues) defaults to Family Code 270's "has or is reasonably likely to have the ability to pay."

Perhaps that is what we are missing. Someone to test this code section's application on a case that goes up on appeal. Do not hold your breath too long.

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