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EXPERIENCED DIVORCE ATTORNEY

Divorces can be time-consuming and expensive. California encourages spouses to do their best to settle divorce conflicts as quickly and efficiently as possible. When spouses try to drive up the cost of a divorce they can be punished for their misconduct.

In some cases, a spouse can be ordered to pay for attorney’s fees and court costs that are caused by their misconduct. California Family Code Section 271 can be a powerful tool for spouses involved in California divorce.

Recovering Attorney’s Fees in a California Divorce

In California, spouses involved in a divorce may be able to recover the cost of attorney’s fees from their spouse. There are generally two situations when this is possible:

  1. When the state has an interest in promoting equal access to the courts; and
  2. When one spouse unnecessarily drives up the cost of a divorce.

In the first case, a spouse who demonstrates a financial need for assistance can request attorney’s fees under Family Code Section 2030. If a court determines that the petitioning spouse has a financial need for assistance and the non-petitioning spouse has the ability to pay for attorney’s fees, it can order such an award. Spouses must demonstrate a financial need in order to recover attorney’s fees under Section 2030.

In the second case, a court can impose sanctions against a spouse who intentionally frustrates settlement discussions and a timely resolution of a divorce. The sanctions available under Family Code Section 271 are equal to the attorney’s fees and court-related costs that are a direct result of this misconduct. Spouses who file a request for attorney’s fees under Section 271 do not have a demonstrate a financial need. Rather, a spouse must simply provide evidence that his or her spouse intentionally drove up the cost of litigation.

Section 271 Sanctions in a California Divorce

Courts are authorized to impose sanctions – equal to an amount of attorney’s fees and court costs – against a spouse who “furthers or frustrates” the state’s interest in promoting the “settlement of litigation.” To put it in the most basic terms, the court can impose sanctions against a spouse if he or she:

  1. Intentionally avoids settlement discussions;
  2. Files frivolous or unnecessary motions; and/or
  3. Does anything to unnecessarily drive up the cost(s) of litigating or defending a divorce.

A spouse can be punished for acts he/she takes in his/her own, or for those actions taken by his/her attorney.

Purpose of Section 271 Attorney’s Fees

California laws make it clear that the state wants to make sure that spouses have equal access to legal representation during a divorce. Under Section 2030, a spouse can request attorney’s fees if he/she demonstrates a need for assistance. California allows this because it has an interest in making sure that both spouses are on equal footing during a divorce. Money and financial ability should not interfere with a spouse’s ability to achieve equitable terms in a divorce. Section 271 exists to support the interest of equality.

When one spouse decides to drive up the cost of a divorce, it is generally an act of malice. The spouse who drives up the cost of a divorce does so to make it financially difficult for the other spouse to participate.

Let’s say Spouse A and Spouse B are getting divorced. Spouse A is not happy about the divorce and wants to punish Spouse B. Spouse A knows that Spouse B is having trouble making ends meet and is spending every last penny on the divorce. In an attempt to punish Spouse B, Spouse A refuses to agree to reasonable settlement offers, stalls to generate more attorney’s fees, and asks his/her attorney to “play hardball” and not cooperate. Spouse A could be sanctioned under Section 271 for those actions.

Section 271 exists to encourage a timely resolution in a divorce and to punish spouses who frustrate the process. Since the attorney’s fees are imposed as a sanction (punishment), spouses who request them do not have to show a financial need.

Process of Requesting Section 271 Sanctions in a Divorce

When will a court impose Section 271 sanctions in a divorce? There are certain requirements and limitations that a court must keep in mind when considering a request for Section 271 attorney’s fees.

Here is a brief overview of the process that is involved in determining whether Section 271 attorney’s fees will be awarded in a California divorce.

  1. Filing a Request. A spouse who wants to recover Section 271 attorney’s fees must file a formal request with the court.
  2. Giving Notice. The spouse that would be sanctioned must be notified of the request and given the opportunity to argue his/her side in court.
  3. Hearing. A court will consider all relevant testimony and evidence in a hearing to determine if sanctions are appropriate. If a court determines that a spouse should be sanctioned for his/her misconduct, the court will then review that spouse’s financial situation.
  4. Evaluating the Burden. Courts are prohibited from imposing sanctions under Section 271 if doing so would impose “an unreasonable financial burden” on the spouse. Courts are required to consider “all evidence concerning the parties’ income, assets, and liabilities.” If the court determines that imposing sanctions would be unreasonable, it may not impose sanctions.
  5. Limitations on Award. When a court determines that an award for Section 271 attorney’s fees is appropriate, it may enter such an order. However, the amount that can be awarded under Section 271 is limited to attorney’s fees and costs resulting from the misconduct. Simply put, Section 271 sanctions are limited to attorney’s fees and court-related costs. Courts may not impose additional penalties under this section.

Fighting to Recover Attorney’s Fees in Your California Divorce

There are two main requirements that must be met in order to recover attorney’s fees under Section 271. First, a court must determine that sanctions are necessary to punish one spouse for his/her misconduct. Second, a court must find that imposing sanctions would not place an unreasonable financial burden on that spouse. If sanctions are appropriate, the award must not exceed the total of attorney’s fees and court costs incurred by the petitioning spouse.

California encourages divorcing spouses to resolve divorce conflicts in a timely manner. If a spouse purposefully frustrates this policy they can be ordered to pay for any resulting costs. If you believe that your spouse has gone out of his/her way to increase your divorce-related costs you may be able to recover an award under Section 271. Contact Berenji & Associates today to learn more.