Who Pays The Attorney Fees In A Divorce?
Everyone who goes into a divorce should understand who pays attorney fees in a divorce or post-divorce matter. It is not as simple as each party paying for only their attorneys.
Suppose you were not the primary earner during your marriage and now you are headed toward a divorce, but cannot pay for an attorney. You have some options available to you.
And, for the high earner – you should read this as well. Often, the high earner is unaware or hasn’t been told they may have to pay for their spouse’s attorney’s fees.
Getting Money For An Attorney When They Have All The Money
In family law, you can hire an attorney by way of a retainer fee, flat fee, or even a security deposit. But, there will usually be some type of payment upfront. Outside of family law, there are times you do not have to pay any attorney’s fees upfront. In personal injury law, for example, a plaintiff’s attorney will ask for a contingency fee agreement, where the attorney agrees to accept a fixed percentage of the monetary recovery for the case – a percentage of the amount finally paid to the client. If you lose, you only pay the costs, but no attorney’s fees. This is not the case for family law cases. California attorneys are prohibited from entering into fee agreements on a contingency fee basis in family law cases.
But, there are still ways to get your attorney’s fees paid at the beginning of the case or near the beginning. For the financially disadvantaged spouse, California’s laws are shaped to give each party access to legal representation for their separation or divorce cases and post-judgment proceedings. Under Family Code section 2030 through 2032, family court judges are supposed to look at the financial disparity between the parties and “level playing field” so that a lower-earning spouse can pay attorneys and experts to litigate the issues in the same way as the higher earning spouse. (Marriage of Tharp (2010) 188 Cal.App.4th 1295, 1315.)
Judicial Officers May Consider All Assets And Abilities In Deciding On Attorney’s Fees
The court takes a look at the parties’ overall financial picture – including all assets, investments and even earning capability – when determining whether to award attorney’s fees under Family Code section 2030. Sometimes, a need-based award can be ordered even when a spouse has the ability to pa their own attorney’s fees. (Marriage of Sorge (2012) 202 Cal.App.4th 626.) Consult with an experienced family law attorney to see if this situation applies to you.
Judges Have Wide Discretion When Deciding On Fees
Because judges have the discretion to decided how much to award, providing the judge with as much of the right information as possible is critical. Careful attention must be paid to the Income and Expense Declaration and the other required forms and declarations. Often missteps are made and a fee award is denied, because something was missing, inconsistent, or incorrectly done. The good news is that when there is a financial disparity, the judge is required, at a minimum, to award some type of need-based fees.
Judges Must Take A Close Look At The Financial Picture
Although 2030 need-based fees are not based on prevailing party and are discretionary, judicial officers must take a close look at the overall financial picture. Judicial officers are required to make an analysis of whether a need-based attorney’s fee award is “just and reasonable under the relative circumstances of the respective parties.” (Fam. Code, § 2032.) They are specifically prohibited from taking a cursory look at the financial picture and “checking boxes on a form.” (Marriage of Shimkus (2016) 244 Cal. App.4th 1262, 1280 – This is a case I won on appeal.)
Judges Must Make Specific Findings When Deciding On Attorney’s Fees
There is no cursory review of financial circumstances. Rather, judicial officers are required to make findings on “whether an award of attorney’s fees and costs 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.” (Fam. Code, §2030.) If there is a disparity in access and ability to pay, judicial officers are required to make an order awarding attorney’s fees and costs. The public policy to ensure equal access is so strong, that when there is financial disparity judicial officers MUST make some kind of order for attorney’s fees and costs.
Consult An Experienced Family Law Attorney
Asking for fees is often one of the first requests made in a divorce case. Even if it is not done at the outset, fees can be requested any time during a divorce. Having the right experienced family law attorney can make all the difference when it comes to getting your attorney’s fees paid. I can help you. Call my law firm, Song Family Law, APLC, at 888-999-0259 or send me an email to initiate a consultation today.