Attorney’s Fees

Keep in mind that in the first example, where there is a huge disparity in income, you would have to prove two things in court. You will need to prove “need and ability to pay”. First, you must prove you have a need for the attorney’s fees, in other words, you cannot pay for them on your own, and you must prove that the other party has the ability to pay the attorney’s fees you seek. Showing statements of some kind that show the existence of funds is the easiest way to do this. In the situation where one party earns $200,000 a year and the other party being a non-wage earning stay-at-home parent, it may be easy to prove those elements. However, if one party earns $90,000 a year and the other one earns $65,000 a year, it may be harder to put that evidence in front of the court.

Last but not least you should be aware that you can ask for attorney’s fees at the very beginning of the process also. For example, asking the court for the money to retain an attorney and for the funds to actually pay for the filing fees at the beginning of a divorce case. Of course, as mentioned above, you can also ask for attorney’s fees by way of a motion to the court throughout the case or later in the process in the circumstance where you run out of money, or no longer have any available credit, or whatever the circumstance may be that cause you to no longer be able to support your side of the case financially.

Attorney’s fees are a common issue, we deal with them in almost every divorce case. If you have issue with needing attorney fees or think you are about to get an order for attorney fees placed against you, call us, we are happy to assist you in any way we can.

Attorney’s Fees, California Divorce & Family Law

The fact is, under California Family and Divorce Law; the Judge can order one party to pay for the other party’s attorney’s fees. Attorney’s fees can be ordered under several Family Law Codes. Each different code is listed below with some explanation of how and when each may be used to request attorney’s fees. The reader will notice however, that the circumstances by which attorney’s fees are requested and the circumstances by which attorney’s fees are ordered, depend on many factors. For example, some attorney’s fees can be ordered simply because one party earns considerably more than the other party. Under another code, the judge can order one party to pay attorney’s fees simply because of bad or unreasonable behavior by a party. You will also notice that under some code sections, before the court can order one party to pay attorney fees to the other, the judge must first make a “finding” that the party being ordered to pay, has the ability to pay the attorney’s fees. Other code sections do not require a finding of ability to pay. I have highlighted some of the most important language in the codes below to better understand the respective code sections. Lastly, this area of Family Law can be a confusing area of Family Law. If after reading this blog post, you still have questions, feel free to write a question to the attorney through this website, or feel free to call us for a free consultation.

THE CODES:

In this first section, you will see that the codes are generally based on “bad behavior” of the other party, and the court must also make the determination that the paying party has the ability to pay the fees ordered, yet the party receiving the fees need not prove the financial need to receive the fees. In other words, the receiving party could receive an order for fees under this code, even if they are perfectly able to pay their own fees.

Family Code Section 270: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.Family Code Section 271:Subsection (a): 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. 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. 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. Subsection (b): 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. (In short, the last sentence of the section above means the party requesting attorney’s fees under this section must provide notice to the other party, which we now know means IN WRITING, and the party shall be given the right to have a hearing and the opportunity to argue against the attorney’s fee award.)Subsection (c): 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. (This section is self-explanatory. Don’t over-think it.)Family Code Section 272:Subsection (a): Where the court orders one of the parties to pay attorney’s fees and costs for the benefit of the other party, the fees and costs may, in the discretion of the court, be made payable in whole or in part to the attorney entitled thereto. Subsection (b): Subject to subdivision (c), the order providing for payment of theattorney’s fees and costs may be enforced directly by the attorney in the attorney’s own name or by the party in whose behalf the order was made. (This section means that the attorney may call on the payor of attorney’s fees for collection himself, and may even sue the person ordered to pay if the fees are not paid.) Subsection (c): If the attorney has ceased to be the attorney for the party in whose behalf the order was made, the attorney may enforce the order only if it appears of record that the attorney has given to the former client or successor counsel 10 days’ written notice of the application for enforcement of the order. During the 10-day period, the client may file in the proceeding a motion directed to the former attorney for partial or total reallocation of fees and costs to cover the services and cost of successor counsel. On the filing of the motion, the enforcement of the order by the former attorney shall be stayed until the court has resolved the motion. (After an attorney is fired or quits, if he had an order for attorney’s fees, he MUST give the new attorney, even if the new attorney is the client acting as their own attorneys, 10 days written notice BEFORE trying to collect on that order, and the new attorney, has the opportunity to file papers with the court to object to such collection. The attorney may not collect during that period (stayed).

“EQUAL ACCESS TO JUSTICE”

This group of codes is designed to insure that both parties have equal access to “justice” even if their respective incomes are considerably different. In other words, if one person earns considerably more money than the other and can afford to pay attys fees for the other, and the poorer party simply cannot afford to pay attys fees, the Court can order the wealthier party to pay the poorer party’s attorney fees for the purpose of making the litigation process fairer. Theoretically, this way, one party can’t hire an attorney and bombard the other party with a bunch of legal work that the poorer party could never afford to pay for. As you will see, these codes ONLY apply to cases for “divorce, Legal Separation and Nullity of Marriage cases. In other words, you cannot get attys fees under these codes in Paternity action or in an action for child support or custody alone. Lastly, if a Court finds the appropriate disparity in income, that one party can afford to pay for the attys fees of both parties, and the poorer of the two needs the assistance, the code below says the court SHALL make the order for attorney’s fees. These codes are worded very strongly.

Family Code Section 2030:Subsection (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. Subsection (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. Subsection (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. (This section means that a party can make the request before the commencement of any particular proceeding) Subsection (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. Subsection (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. Subsection (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.

Family Code Section 2031Subsection (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. Subsection (2): The court shall rule on an application within 15 days of the hearing on the motion or order to show cause. Subsection (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: Subsection (1): At the time of the hearing of the cause on the merits. Subsection (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.Family Code Section 2032Subsection (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. Subsection (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. (This section REQUIRES the court to ALSO consider all of the 4320 Factors, which are also described in another blog on this website. To fully understand this section, you should also read the detailed section on the 4320 Factors herein) Subsection (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. (This section means that a Judge could order someone to sell, not only community property assets, but also the wealthier party’s separate property, such as jewelry or liquidate a separate property bank account of retirement account to help pay for the other party’s attorney fees.) Subsection (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. Family Code Section 2033Subsection (a): Either party may encumber his or her interest in community real property to pay reasonable attorney’s fees in order to retain or maintain legal counsel in a proceeding for dissolution of marriage, for nullity of marriage, or for legal separation of the parties. This encumbrance shall be known as a “family law attorney’s real property lien” and attaches only to the encumbering party’s interest in the community real property. (This is a way for the poorer party to place a lien against their home to pay for attorney fees. The lien ONLY affects their interest in the home, and does not become a lien against the other party. This is another method for borrowing money to pay for attys fees IF the judge refuses to order the other party to pay for the poorer party’s attorney fees. As you will read, this type of lien can be objected to by bringing an ex parte action to object.)Subsection (b): Notice of a family law attorney’s real property lien shall be served either personally or on the other party’s attorney of record at least 15 days before the encumbrance is recorded. This notice shall contain a declaration signed under penalty of perjury containing all of the following: (1) A full description of the real property. (2) The party’s belief as to the fair market value of the property and documentation supporting that belief. (3) Encumbrances on the property as of the date of the declaration. (4) A list of community assets and liabilities and their estimated values as of the date of the declaration. (5) The amount of the family law attorney’s real property lien. Subsection (c): The non-encumbering party may file an ex parte objection to the family Law attorney’s real property lien. The objection shall include a request to stay the recordation until further notice of the court and shall contain a copy of the notice received. The objection shall also include a declaration signed under penalty of perjury as to all of the following: (1) Specific objections to the family law attorney’s real property lien and to the specific items in the notice. (2) The objector’s belief as to the appropriate items or value and any documentation supporting that belief. (3) A declaration specifically stating why recordation of the encumbrance at this time would likely result in an unequal division of property or would otherwise be unjust under the circumstances of the case. Subsection (d): Except as otherwise provided by this section, general procedural rules regarding ex parte motions apply. Subsection (e): An attorney for whom a family law attorney’s real property lien is obtained shall comply with Rule 3-300 of the Rules of Professional Conduct of the State Bar of California. Family Code Section 2034Subsection (a): On application of either party, the court may deny the family law attorney’s real property lien described in Section 2033 based on a finding that the encumbrance would likely result in an unequal division of property because it would impair the encumbering party’s ability to meet his or her fair share of the community obligations or would otherwise be unjust under the circumstances of the case. The court may also for good cause limit the amount of the family law attorney’s real property lien. A limitation by the court is not to be construed as a determination of reasonable attorney’s fees. Subsection (b): On receiving an objection to the establishment of a family law attorney’s real property lien, the court may on its own motion determine whether the case involves complex or substantial issues of fact or law related to property rights, visitation, custody, or support. If the court finds that the case involves one or more of these complex or substantial issues, the court may determine the appropriate, equitable allocation of fees and costs as provided in subdivision (d) of Section 2032. Subsection (c): The court has jurisdiction to resolve any dispute arising from the existence of a family law attorney’s real property lien.