California Family Law Attorney
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December 05, 2010
  ATTORNEY FEES In CUSTODY Cases: 2011 Family Code Amendments
Posted By Thurman Arnold III, CFLS

2011 Family Code Changes Affecting Attorney Fee Requests

Along with other changes to the California Family Code brought about by the Elkins Committee's recommendations, Family Code section 3121 has been amended to make its language consistent with revised section 2030. Amended Family Code section 3121 is effective January 1, 2011.

Family Code section 3121 has always been more liberal than other attorney fees provisions in the California Family Code, but in my experience most lawyers, parties, and judges have acted like it did not exist. I have rarely seen an attorney argue for attorney fees under this section, probably because such arguments historically fell on deaf ears. That may be changing.

Section 3121 authorizes attorney fees in certain types of cases that are otherwise not mentioned in §2030, like paternity cases. It applies whenever custody is at issue.

An important difference between section 3121 and Family Code section 2030, besides the fact that 2030 deals with actions generally (dissolution, annulment, and legal separation) while 3121 is aimed at custody proceedings taking place in an OSC (Order to Show Cause) or NOM (Notice of Motion) format, is that attorney fee requests can be made "by an oral motion in open court" either at "the time of the hearing" or at any other time before entry of a judgment against a party whose default has been taken.

In other words, the request can be made without prior notice for the first time when the parties appear in court on a custody related application. However, I have never seen a Court willing to grant such an oral request, although clearly trial courts are directed to consider them. Possibly this will change, and certainly attorneys and parties seeking to get money to hire an attorney should be arguing the Elkins changes to stubborn judges. The likelihood that these judges will be reversed on appeal now for refusing to award fees to needy parties in appropriate cases is vastly improved beginning in 2011.

For more information about the grounds and procedures for seeking attorney fees in family law cases, please try my on-site search engine.

Thurman W. Arnold III, CFLS*

*State Bar of California, Board of Legal Specialization


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December 04, 2010
  Making Attorneys Accessible to Family Law Litigants: 2011 ATTORNEY FEE REVISIONS TO THE FAMILY CODE
Posted By Thurman Arnold, CLFS

December is new legislation month at the Enlightened Divorce Blog™ presented by southern California Family Law Attorney Thurman W. Arnold. My goal is to inform you well, and early on, on any number of topics that will improve your outcome in your family law matters and hopefully to help you to reach results that are fairer for you, your spouse or ex-partner, your children, and your blended and extended families.

Effective January 1, 2011, a very important change to the rules that family courts must apply in deciding whether and when to award attorney fees to spouses (and domestic partners) who may have a relative inability to access the funds necessary to secure justice becomes effective.

This is revised Family Code section 2030. It is a welcome and much needed change in the California law impacting attorney fee awards in proceedings that take place in Family Courts. It is intended to assist parties who historically have been the "out spouse" or "out partner" in marriages and domestic partnerships, by reason of the fact that they may lack independent wealth or assets, or may not during the relationship have managed the community property, or who are otherwise marginalized in terms of access to such funds as are required to conduct litigation and protect their interests because one spouse acted first and grabbed all the funds.

Without money people cannot hire competent matrimonial law attorneys. This effectively created an imbalance of power that family court judges were too often not redressing (otherwise there would have been no need for the revisions).

As a result of the Elkins Task Force's year long study, which included obtaining commentary from jurists, lawyers, and family law specialists among others, the legislature has declared that the times when one spouse was able to grab or control community funds and so starve the other out in the course of adversary litigation, are ending.

Family Code section 2030 changes this playing field importantly by minting new judicial policies that include:

  • 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.

Thurman W. Arnold, III


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October 18, 2010
  How Do I Get An Order for ATTORNEY FEES in a COMPLEX CASE?
Posted By Thurman Arnold

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?


[Please note - this Blog is updated with a recent Blog Article detailing the 2011 Revisions to the California Family Code affecting attorney fee awards 12/9/10].

A. I frequently hear from people whose cases are "stalled" because they have no money to pay their attorney, and no money to hire forensic experts. It is a problem I face in my practice with certain clients. It takes money to develop your case, and if there is really none available it is difficult to get anyone to pay attention. Often there are assets that only one spouse controls. That spouse or RDP (registered domestic partner) usually claims those assets to be their "separate property" even when the claim is ridiculous (for instance, closely held stock issued as "their sole and separate property" when the vesting of title in their name alone during marriage was just their manipulation and you didn't agree to it).

When there are assets that exist there is much that you can do. These assets, whether they be allegedly separate or community, are available to be borrowed against, or sold, to raise money so you can pay your attorney and hire experts to do the work that must be done.

However, your attorney needs to understand how to accomplish this or find one who does. Specifically one method that works well is to have a referee appointed under Code of Civil Procedure section 639 to oversee a "case management plan" under the circumstances described in Family Code section 2032(d).

Specifically, have your attorney ask the Court in a motion to make a finding that your case involves "complex or substantial issues of fact or law." These can be related to property rights, custody, visitation, and support and may include bifurcations of issues. If you don't have an attorney, this would still be a start to obtaining findings that will generate money to hire one.

Once the Court so designates your case, it will itself begin to implement a plan or assign someone else - like an outside lawyer whom the court recognizes as an expert, to make recommendations as a referee. While the Court is not obligated to follow the recommendations of these referees, they usually do. And if they don't the court may find itself overturned on appeal as happened 10/1/10 in In Re Marriage of Tharp, a case I will be writing about in detail as time permits.

This is a major step in not only getting someone to look more closely at the attorney fees you need (judges, after all, have really limited time) but also a good way to jump start a stalled dissolution or other family law case.

BTW, under the new statutes that take effect in 2011 as a result of the Elkins Task Force recommendations, case management may become the norm in California in family law proceedings.

TW Arnold

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April 08, 2010
  What happens to FEES I deposited if I FIRE my ATTORNEY?
Posted By Thurman Arnold

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


A. Attorneys are required by California State Bar Rule 4-100 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. These monies are supposed to be placed into an attorney-client Trust Account. Unfortunately, may attorneys pocket the money or put it in their general account. This creates a conflict of interest, because if they've spent the money already they are more likely to pad their bills.

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.

Here's a link to the rules and statutes governing the attorney-client family law relationships.

T.W. Arnold


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January 17, 2010
  I have an attorney but what if I want a SECOND OPINION?
Posted By Thurman Arnold. Certified Family Law Specialist

Q. I am represented by an attorney. However, I don't have a lot of faith in him anymore and now trial is scheduled in four months. Am I being paranoid in wanting a second opinion about my divorce case?

Clara - Redding, CA


A. I understand, Clara. Dissolution proceedings generate great anxiety. The circumstances surrounding the breakup of relationships, division of property and debts, sharing of custody, fears about future economics, and being a stranger to a process that one can only marginally direct or control cause difficulties in evaluating the quality and value of advice that clients receive.

Please don't hesitate to seek a second or even a third opinion about your family law matter.

We all ought to have a healthy skepticism about what professionals tell us, particularly when the subject affects us in an intimate, immediate or lifetime basis. It is not uncommon to become suspicious of one's attorney, or to lose confidence. Indeed, a major tactic which parties use to manipulate each other in high conflict divorces involves promoting distrust of the other's lawyer; a second opinion may become useful in grounding you. Your fears may be well founded, or they may be caused by a lack of understanding (most often a result of poor communication skills on the part of an attorney, or a lack of apparent empathy for your plight). In either case with these warning signs evident and some time left to change horses if that is indeed what you conclude is necessary, failing to investigate this further right now is a recipe for disaster.

Lawyers are not all created equally; some are unquestionably smarter and more poised and articulate than others, and there is a huge variation in the level of skill and commitment that individuals possess or bring to any particular case or specialty topic.

Certified Family Law Specialists are highly likely to understand the legal complexities of modern divorce, and to be familiar and comfortable with current best practices in the mental health sciences as they relate to individual and family dynamics. Most attorneys lack sufficient interest to bother to undertake the fairly grueling training, education, and testing required for certification as a legal specialist. Although certification as a divorce expert does not guarantee the outcome you desire to achieve, it does stack the odds in your favor - hiring a specialist is more likely to pair you with an experienced legal professional who is at the top of the divorce lawyer bio-sphere. If your attorney is not certified, or even if he is and you sense that his advice is not efficient or it is not making sense to you (or others), it is no sin to discreetly step away, take some breaths, and get reliable and independent feedback.

If you are feeling uneasy about the quality of the legal representation you are receiving, don't ignore the signals. Given what is at stake, why not seek a second legal opinion from a qualified attorney? At worse you may find that your anxiety has been dispelled and that the real problem with you and your lawyer involves a lack of communication or a lack of understanding by one or both of you that can be remedied; at best you may avert a developing train crash before your life and finances are thoroughly wrecked.

We don't have crystal balls, but we all possess intuition and common sense. Use yours!

We offer Second Opinions and frank and discreet, expert advice, by telephone and video-conferencing and webcam!

Thurman W. Arnold III, C.F.L.S.

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August 18, 2009
  I want to hire a NEW ATTORNEY with money my husband was ordered to pay my last lawyer.
Posted By Thurman Arnold

Q. The court ordered my husband to pay my family law attorney $10,000 for legal fees at $500/month. He has made 2 or 3 payments. The court order says the fees are to be paid directly to her. I want to fire her and hire a better attorney. Can this money be used to pay that attorney instead?

Judy, Vista, CA


Family Code section 272 provides, in dealing with court orders that one party pay the other money on account of their legal fees, "(c) If the attorney has ceased to be the attorney for the party in whose behalf the order was made, the [prior]attorney may enforce the order only if it appears of record that the attorney has given to the former or successor counsel 10 days' written notice of the application for enforcement of the order. During the 10 day period, the client may file in the proceeding a motion directed to the former attorney for partial or total reallocation of fees and costs to cover the services and cost of successor counsel. On the filing of the motion, the enforcement of the order by the former attorney shall be stayed until the court has resolved the motion."

So, in order for your former attorney to be entitled to enforce the fee order she has to have given you notice which is unlikely since few attorneys know about this rule. Effectively, you probably need to demand she give the notice, and then file or have a motion filed within the 10 days to tell the court you cannot continue your case if those fees are not used for your new attorney.

However, judges seem reluctant to deprive the former attorney of the fees they already claim to have earned (as opposed to future unearned fees), so this may not be as easy as it sounds. And, if you want to trash your former attorney in order to justify your request it may bite you instead. If your former attorney is respected and has a good reputation, and is well-known to the Court your chances are slim. Your best argument may be your financial circumstances and the public policy that obviously lies behind subsection (c) - ensuring that parties have counsel in family law and dissolution proceedings.

Also, this statute is a bit challenging to interpet. It speaks in terms of enforcing a fee order which sounds like a situation where an attorney has received, say, a $10,000 order but hasn't been collecting it in monthly installments. In your situation, your new attorney might make a written demand of your husband that he cease the installments to the earlier attorney and pay the new attorney instead (assuming your new attorney is willing to make an enemy of the former lawyer). That also would trigger the 10 day rule.

We written extensively about attorney fees in divorce and family law cases!

Author: Thurman W. Arnold


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6 entries found. Viewing page 1 of 1.