Family disputes can be expensive. Few lawyers work for free, and many divorces are complicated, requiring the use of expert witnesses, forensic accountants, and other professionals, all of whom charge fees for their work.
California lawmakers want to ensure both spouses in a divorce are afforded equal access to legal representation. In many cases, each spouse will have a different financial ability to pay for legal counsel.
California Family Code Section 2030 basically ensures each spouse will be given access to representation during divorce proceedings. In basic terms, this statute allows a family law court to order one spouse to pay a reasonable amount for the other's attorney and even court fees.
It's designed to help make divorce court fair in spite of a spouse's financial situation. It's important to have an understanding when a court could issue this type of order. California Family Code § 2030 allows you to ask the judge to divide the expenses of the litigation. There are many spouses who ask if they can force their spouse to pay their attorney's fees.
Equal Access to the Courts
California family courts are required to make sure each spouse in a divorce, separation, or annulment proceedings are given access legal representation.
Under Family Code 2030, the court has the authority to issue an order that a spouse pay an amount that is reasonably necessary to make sure the other spouse has access. The court can issue this order to pay attorney's fees when one spouse can demonstrate a financial need for assistance and the other spouse has the financial ability to pay.
The family court will review whether there is a disparity of income between the spouses and available resources. If they determine there is a substantial disparity, they will most likely issue an award order. The amount of money awarded will normally depend on how much the other spouse needs for an equal opportunity to defend themselves in the divorce case.
California law allows a judge to divide the costs of a divorce “equitably” between the parties. Equitably means fairly. In certain circumstances, a spouse with more resources will need to pay more of the expenses of the divorce, which means this spouse will end up paying some of his ex's attorney's fees.
Any spouse seeking a request for an award for attorney's fees has to file file a request with the court by competing a Request for Order (Form FL-300), and a Income and Expenses Declaration (Form FL-150).
Calculating the Amount of Fees Awarded
Under the statute, the court may make an award of “reasonably necessary” attorney's fees. A Los Angeles divorce lawyer might bill $1,000 an hour, but that doesn't mean a court will award that much. Instead, the court determines whether fees are reasonable by looking at several factors:
- The nature, complexity, or difficulty of the litigation
- The size of the community estate involved in the litigation
- Each party's financial circumstances
- The attorney's experience, competence, experience, and special skills
- The skill required for the divorce
If a divorce is straightforward, then reasonable fees will be much lower than if a divorce is very complicated. For example, a large estate that presents complicated tax issues warrants a higher attorney fee award.
A judge can also include the costs of litigation, which includes things like fees charged by accountants, child therapists, and appraisers. These costs can be considerable in some divorces, so don't forget to include them in your request.
When deciding whether to award attorneys' fees, courts will also consider whether an attorney has tried to reach a voluntary settlement. Judges prefer settlement and will look favorably on a lawyer if they tried to reach a good faith agreement.
By contrast, if an attorney has dragged out a case in the hopes of getting more attorneys' fees, then the court might not award anything.
The Relative Circumstances of Each Party
Under the statute, the court must consider the relative circumstances of each party to the litigation, considering the need versus the ability to pay. If you are a litigant, you will help this process by submitting an Income and Expense declaration along with your request for attorneys' fees.
When considering need, the court will look at all assets, investments, income, and other sources of money of the party requesting attorney's fees. So if you have a rental property, then the income from that property will be considered.
However, a court will not order attorneys fees if the other party has no ability to pay, so it must look at all sources of income for that party as well.
Judging a person's ability to pay is sometimes complicated because the person might not be earning as much as they could. To address this situation, judges are empowered to consider a party's income earning potential instead of what they actually report as income.
So if your spouse is a doctor who has decided to become a sculptor, the judge can consider what your spouse would make if he returned to being a doctor. It should be noted the court could also consider the assets and income of the spouse's new partner when making a decision.
Equitable Division of the Costs of the Lawsuit
Ultimately, the court is charged with determining how to divide the entire costs of the divorce. The fact that the party requesting attorneys' fees might be able to pay does not mean they cannot request attorneys' fees. Consider the following:
Husband and Wife are seeking a divorce after 20 years of marriage. Husband has enough money to hire his own Los Angeles divorce lawyer, but wife has far more resources since she inherited millions from her parents.
Even though husband can afford his own lawyer, it still might be fair to require wife to pay some or all of the attorney's fees.
Whether to award attorneys' fees is left to the sound discretion of the trial court. This means it is very unlikely that you can win an appeal if you are unhappy with the judge's decision.
Get Help From a Los Angeles Divorce Attorney
If you see divorce in the future, you need an experienced legal advocate in your corner. Helpfully, you can use California Family Code § 2030 to defray some or all of the costs of seeking a divorce. Our divorce lawyers can help you determine if you are eligible for an award of need based lawyer fees.
Our team of Los Angeles divorce lawyers can help protect your rights during divorce, but we need to hear from you. Call 818-528-3471 or submit this contact form. Our law firm offers a free consultation to review your situation.
Furman & Zavatsky LLP
15821 Ventura Blvd #690
Encino, CA 91436