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Under the California Family Law Code and California Code of Civil Procedure, there several mechanisms by which a family law court litigant can seek attorney fees and costs. The following article discusses an award for attorney’s fees pursuant to California Family Code § 2030 et seq. Please note that these procedures can be complicated and often require the assistance of a family law attorney. If you are seeking a need based award for attorneys fees or attorneys fees as sanction, speak with a divorce lawyer at Berenji & Associates today to discuss your options.

Need Based Award for Attorney’s Fees and Costs – Family Code 2030 et seq.

Pursuant to Family Code 2030 et seq., California Family Courts are authorized to make an order requiring any party to litigation to pay a reasonable portion of the opposing party’s attorney’s fees, so that the latter can maintain or defend a proceeding. To make this award, the courts consider the relative circumstances of the parties. (Family Code 2032(b).) This is referred to as the “need versus ability to pay” analysis, which has been codified in Family Code § 2030(a).

Need:

When determining “need” the Court must assess this need relative to the other party’s ability to pay. To do so, the Court will consider all evidence of the parties’ assets, current income, investments, and income producing properties.

It is important to note that the court will limit the award to an amount necessary to efficiently and expeditiously handle the instant matter. If a party to litigation has an attorney that engages in tactics designed solely to unnecessarily prolong and litigation, then that party is unlikely to receive attorney’s fees.

Ability to Pay:

The court can order an award for attorney’s fees and costs only if the party ordered to pay the award has the ability to do so. When considering “ability,” the court will consider almost all sources of income, including wages, community property, and investment income. In determining ability to pay, the court may also consider new mate or partner income.

When considering “ability” to pay, the court is also authorized to consider a party’s earning ability, as opposed to actual earned income. The court typically does this when current income does not accurately reflect the party’s financial ability. (See, e.g., In re Marriage of Sullivan (1984) 37 Cal. 3d 762, 768–769, 209 Cal. Rptr. 354, 691 P.2d 1020 (court made reasonable inference that husband’s medical practice would continue to flourish and his income would increase although present expenses exceeded income.)

Amount of Award:

The trial court has broad discretion when determining the award amount, and its decision will only be overturned on appeal if you can show an abuse of discretion on the part of the trial court. This is a very high burden to meet. The Court of Appeals will only overturn the trial court’s decision if, considering all of the evidence viewed most favorably in support of its order, no judge could reasonably have made it. (In re Marriage of Huntington (1992) 10 Cal.App.4th 1513, 1521 [14 Cal.Rptr.2d 1].)

What if the Party Requesting Attorney’s Fees Can Afford to Pay their Own Litigation Costs?

The fact that one party has the ability to pay their own litigation costs is not a bar to receiving attorney’s fees under and needs based analysis. In the case of In re Marriage of Dietz (2009) 176 Cal. App. 4th 387, 406, 97 Cal. Rptr. 3d 616, the court held that the “proper standard is not whether party requesting attorney fees and costs had resources to pay attorney fees without considering other factors; trial court is required to determine how to apportion overall cost of litigation equitably between parties under their relative circumstances.”

What Financial Resources The Court Can Consider?

The Court has authority to order an award from any type of property, including income and community property. In short, Court has broad discretion to consider virtually all resources when determining an award for attorney’s fees.

Types of Fees that May Be Awarded Include Attorney’s Fees and Costs

Attorney’s Fees

The court can make an award for attorney’s fees at any point during the proceeding. However, those fees must be “reasonably necessary.” (Family Code 2030 (a).) To determine if the fees are reasonable, the court will consider the following factors as listed in (In re Marriage of Norton (1988) 206 Cal.App.3d 53, 57 [253 Cal.Rptr. 354].) :

  • The nature of the litigation, its complexity or difficulty,
  • The nature and extent of the proceeding,
  • The size of the community estate involved,
  • The financial circumstances of the parties,
  • The skill required, and
  • The standing, experience, professional competence, and special expertise of the attorney

As previously mentioned, the courts will also consider to what extent the attorney’s conduct has been helpful in reaching a voluntary settlement. If your attorney is engaging in scorched earth tactics designed to frustrate settlement and prolong litigation, rest assured that the court is unlikely to award you attorney’s fees.

Costs

Beyond attorney’s fees, the award can also include reasonable costs incurred during litigation. Costs typically include auditors, accountants, experts, or appraisers.

Applying For Award and Costs

Making an application for an award is generally made via a request for order. (“RFO”, Cal. Judicial Council Form FL-300.) When making a request for attorney’s fees, you will need to include an Income and Expense declaration form. (Cal. Judicial Council Form FL-150.)

Need More Help?

If you are considering divorce but worried about legal fees, call Berenji & Associates today for a free consultation. You may be eligible for an award for attorney’s fees and costs. Our experienced attorney have over 20 years of combined experience helping families going through a divorce.