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 he may have to pay for his spouse's attorney's fees.
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 up front. Outside of family law there are times you do not have to pay any attorney’s fees up front. 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, Family Code section 2030 through 2032 directs judicial officers make need-based attorney’s fee orders (awards) when there is a disparity in access to funds for legal representation. It is California public policy to “ensure that each party has access to legal representation” in dissolution, nullity, or legal separation cases - or in any subsequent proceeding after entry of a related judgment. Thus, Family Court Judges are supposed to look at the financial disparity between the parties and create a “level playing field” so that a lower-earning spouse can pay attorney’s and experts to litigate the issues in the same way as the spouse with higher earnings. (Marriage of Tharp (2010) 188 Cal.App.4th 1295, 1315.)
The decision to award fees under Family Code section 2030 requires a close look at the overall financial picture. The decision is based on a financial disparity analysis that includes income and "all evidence of assets, and abilities, including investment and income-producing properties.” (Marriage of Tharp (2010) 188 Cal.App.4th 1295, 1315.) There are also situations where a need-based award can be ordered even when a spouse has resources to pay her own attorney’s fees. (Marriage of Sorge (2012) 202 Cal.App.4th 626.) But, you should consult with an experienced Orange County family law attorney to see if this situation applies to you.
Judges have wide latitude in deciding the amount of the award. So, providing the judge with all the information, the right information, is critical. Careful attention must be paid to the Income and Expense Declaration and the other required forms and declaration. Often missteps are made and a fee award is denied, because something was missing, inconsistent, or just incorrectly done. The good news is that when there is a financial disparity, judicial officers are required at a minimum to award some type of need-based fees.
Keep in mind you don’t have to “win.” Family Code section 2030 need-based fee awards are not based on who wins (otherwise referred to as the prevailing party). (Marriage of Popenhager (1979) 99 Cal.App.3d 514, 525.) There are, however, some situations in family law that provide for attorney’s fee awards to the prevailing party. For example, Family Code section 3652 can be used by a prevailing party in a modification, termination or set aside of a support order. And, Family Code section 6344 authorizes prevailing party fees and costs in domestic violence restraining order cases.
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 - Sorry, but I have to add that this is a case I won on appeal.)
So, 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 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.
Family Court judicial officers are busy – that may be an understatement. Let me put it this way, they are overwhelmed with cases. Because of their caseload they may not fully do the required analysis in every situation. So, when you request attorney’s fees the request must be done right.
You can request attorney’s fees using FL-300 Request for Order. With your Request for Order you will also want to ask your judicial officer for a specific amount. Ideally, you should have an experienced Family Law attorney file the Request for you with all the required and supporting declarations. If not, you will want to make sure you submit all the required declarations with your request, including an Income and Expense Declaration providing your judicial officer with your financial information. If you do not file a written declaration, you should fill out Request for Attorney’s Fees and Costs Attachment (FL-319), Supporting Declaration for attorney’s Fees and Costs Attachment (FL-158), and Spousal or Partner Support Declaration Attachment (FL-157). Most attorneys do not include FL-157, but if you are not submitting your declaration with the Request for Order, you should submit this form and fill out all applicable sections.
A word about Income and Expense Declarations. Even where you are estimating, be as accurate as possible. Go through your bank statements and pay stubs and calculate correctly all your income and expenses. And, do not forget to attach proof of income, whether it is a pay stub or a profit and loss statement. For example, one of the questions on the Income and Expense Declaration asks what you estimate is the other party’s income (Question number 4), you will want to attach a detailed explanation of the reasons supporting your estimate. You can even attach their pay stubs or other documentary evidence. You cannot attach tax returns, but you must bring them with you to the hearing. One thing that you should always keep in mind with Income and Expense Declarations. Never lie. Don’t even intentionally overestimate or underestimate. Judicial officers and experienced family law attorneys can easily pick out inconsistencies and then cross-examine you to get to the truth. Once your credibility with a judicial officer is damaged, it is very very difficult to repair.
Family Code section 2030 need-based fees can also be awarded in post-judgment modification proceedings. So, if you think you qualify for a modification of child or spousal support, you may be able to get need-based attorney’s fees from your ex-spouse. But, you should consult with an experienced family law attorney to see if you can modify support, because there are certain requirements that need to be met before you have any hope of a modification.
Need-based attorney fee awards can also be ordered in exclusive custody actions and paternity cases. (Family Code, §§ 3121 & 7605, 7640.) Judicial officers can order need-based attorney fees for custody or visitation proceedings after a judgment has been entered regarding parentage. (Robert J. v. Catherin D. (2005) 134 Cal.App.4th 1392, 1395.)
Another way to get attorney’s fees from your spouse is by way of sanctions under Family Code section 271. This is not based on need, but behavior. If your spouse or ex-spouse is behaving badly during litigation - frustrating the policy to promote settlement - you can ask the judicial officers to sanction the other party. For example, one case awarded $100,000 to a wife whose husband refused to account for the proceeds from the sale of community property forcing wife to bring motion after motion to get him to comply. (Marriage of Quay (1993) 18 Cal.App.4th 961, 970.) Failure to disclose financial information is often the basis for sanctions motions and litigants are sometimes unaware of the consequences.
There are other code sections that provide for sanctions, such as when a party makes false child abuse allegations to gain an advantage in custody litigation. (Family Code, § 3027.1(a).) It is important to consult with an experienced family law attorney to see which ones apply to your case. But, Family Code section 271 is the catch all sanctions code for family law cases.
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. But, having the right, experienced family law attorney can make all the difference when it comes to getting your attorney's fees paid.
Song Family Law - Mission Viejo
27201 Puerta Real, Suite 300
Mission Viejo, CA 92691
Song Family Law - Orange
500 N. State College, Suite 1100
Orange, CA 92868