• Facilitating access to counsel by parties early on in the proceedings should be encouraged, and attorney fee awards help to accomplish this.  This is because cases are more likely to settle when people begin with a parity of access to resources, and settlement is always the ultimate goal.  FC §2030(a). 

• Courts must now make findings on whether an award for attorney fees and costs is appropriate, including based upon the question whether there is a disparity in access to funds to retain counsel, and whether one party is able to pay for the legal representation of both parties.  FC §2030(b).  This revision directs trial courts to apply a variation of the disparity of earnings analysis that was first expressed in Marriage of Hatch (1985) 169 Cal.App.3d 1213, an appellate decision that some trial courts had ignored.  Relative access measured in terms of such disparity is now key.  "Disparity" implies 'a great distance or gap.'

• The California Judicial Council is directed, by January 1, 2012, to promulgate and adopt state-wide court rules in order to implement this directive in terms of what information is to be submitted to court's to support attorney fee requests.

From an experienced family lawyer's point of view, my take on this revision is that its greatest value is in telling family court judges that attorney fee awards in appropriate cases are to be the standard and not the exception.  I suspect, however, that judges and commissioners will remain overly conservative.

From a family sciences point of view I believe it is a significant improvement in the law if we are to equalize power between spouses and, frankly, genders.  More often than not women have been on the losing side of the attorney fee question in the sense that they have not controlled community or other resources to the same extent, and in the same manner, as many of their husbands.  I think that it will advance woman's rights in family law litigation.  

I do not want to overstate the power of this revision.  It is a move in the right direction, but nonetheless something of a baby step.  We will await appellate court pronouncements as to what standards family courts should apply as trial courts are reversed for being too timid or parsimonious, or even too generous.  The California Judicial Council is given to 2012 to propose state wide guidelines that will give direction to courts, and that may help to foster uniformity between different venues, in coming years.

Q.  My divorce seems like it has stalled.  My wife operates our family business, we own several properties including a commercial building and she collects the rents, she isn't cooperating with me on custody on our kids, and I need money to pay my attorney.  She is controlling this case, and I am getting nowhere.  Any recommendations?

"Ed from Temecula"

TW Arnold
10/18/10

Q.    What are the refund policies if I reconcile with my spouse or switch attorneys?

A.    Attorneys are required by California State Bar rules to refund all unused fees promptly, for whatever reason, when the relationship ends unless you have a Flat Fee arrangement where all the monies have been earned upon retention. 

Attorneys are required to provide your original file to you, after they copy it at their own expense. Attorneys cannot hold a file hostage for unpaid fees.  They must sign a Substitution of Attorney withdrawing from the case upon demand, regardless of whether or not they claim you owe them money.  They are required to give a full statement and explanation of your fees and charges upon request.  Refusal to do within 10 days or less may be a cause for State Bar Discipline.