Attorney Fees for California Family Court Proceedings
Important 2011 Revisions to the Family Code
Common Questions About Attorney Fees
You are considering filing for a dissolution or legal separation, or possibly you have a pending family law matter involving support or custody, and you are wondering whether you can continue without legal representation. Perhaps your former partner has already hired a lawyer.
You don't know how much an attorney might charge, and you are worried where you might find the money. Can you use community funds or joint credit? Will the attorney accept a credit card, or installment payments? Which attorney is best for you?
Will a Judge order the other side to pay or reimburse these divorce or family law related attorney fees?
Maybe you've called some law offices and cannot get an attorney to speak with you, or they seem reluctant to answer questions over the phone.
What are your rights?
California Family Law Attorney Fee Statutes
Effective 2011, your ability to retain counsel has improved by reason of legislation that becomes effective on January 1. Most importantly judges are now required to consider two new layers in evaluating whether to order one party to contribute attorney fees to the other, or to make money otherwise available for that purpose: Whether there is a "disparity in access to funds to retain counsel" that justified an order to help the "out" spouse and a requirement that attorney fees be awarded "early on" in the proceedings.
There are four basic themes that govern whether you are entitled to receive or be required to pay attorney fees. These are: (1) the ability of each party to pay attorney fees to the other party or to their own attorney; (2) the
relative financial needs of each party; (3) relative
disparity of access to funds; and (4)
conduct by either party that justifies awarding attorney fees to sanction bad behavior. In all cases the relative financial circumstances of the parties must be evaluated, which includes looking at what assets each party controls as well as their respective income streams.
At the moment you file for a Dissolution or Legal Separation certain "automatic temporary restraining orders" (ATRO's) go into effect. They are contained in the Summons. When the other party is served with the Summons and the Petition, they likewise become bound by them. It doesn't matter whether you or they actually read them.
Family Code § 2040 spells out the ATRO's. These prohibit either party from taking certain actions that might damage the other's economic interests. Among these statutory restrictions is an injunction that neither spouse or domestic partner may transfer, encumber, conceal, or dispose of any property without the written consent of the other party, or a court order. ATRO's apply to the community property and to what you believe to be your separate property, equally.
FC section 2040(2) contains an exception relating to using community or separate funds (including the other party's separate assets or credit) for fees. It states: "nothing in this restraining order shall preclude a party from using ... property to pay reasonable attorney's fees and costs in order to retain legal counsel in the proceeding."
There is an obligation to account for those funds at some point in the future. You may or may not be charged for them on the marital balance sheet, or you may have an obligation downstream to reimburse some or all of them to the other party. But you can use funds or borrow money to hire your divorce lawyer at once. You do not need to tell your ex-partner first.
Attorney Fees From Income Or Property
The chief California statute governing attorney fees in dissolution settings is
newly revised Family Code § 2030. It applies to initial orders for fees, and to later modifications and post-judgment proceedings. Its purpose is to "ensure that each party has access to legal representation to preserve each party's rights by ordering, if necessary based upon the income and needs assessments, one party, except a governmental entity, to pay to the other party, or to the other party's attorney, whatever amount is reasonably necessary for attorney's fees and for the cost of maintaining or defending the proceeding...." Courts are directed to look at the "respective incomes and needs of the parties" and "any factors affecting the parties' respective abilities to pay." In 2011 they must also consider disparities between the parties' access to resources. "
If the findings demonstrate disparity in access and ability to pay, the court shall make an order awarding attorney's fees and costs." Section 2030(a)(2).
The 2011 revisions to Family Code section 2032 similarly expand what the Court must consider in making or refusing an attorney fee request. This includes "the need for the award to enable each party, to the extent practical, to have sufficient financial resources to present the party's case adequately,..." Section 2032 continues that "[t]he fact that the party requesting an award of attorney's fees and costs has resources from which the party could pay the party's own attorney's fees and costs is not itself a bar to the order that the other party pay part or all of the fees and costs requested." Family Code section 2032 also states: "The court may order payment of an award of attorney's fees and costs from any type of property, whether community or separate, principal or income."
When Courts make an award of attorney's fees, the amount ordered may be payable at once, or over time. It can be paid directly to the attorney or to the client. If there is sufficient cash assets to pay the award at once, the order is usually made payable "forthwith." If the fees are coming from the other party's income, the Court's order will be payable at a fixed monthly rate over time on condition that if any payment is missed the entire balance becomes immediately due and payable. Interest at 10% runs on unpaid attorney fees from the time any payment becomes due.
What is a FLARPL?
A FLARPL is a Family Law Attorney's Real Property Lien. It allows a party, by their attorney, to encumber equity in real estate for fees that are earned or anticipated in a proceeding for dissolution of marriage or domestic partnership, legal separation, or annulment.
Family Law section 2034 is newly revised in 2011 to expand the power of courts approve FLARPL's to ensure fees are paid in complex cases involving substantial issues.
For more information, please see this article on my
Desert Divorce and Family Law Blog.
Contact the Dissolution Law Firm of Thurman W. Arnold III
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