Attorney Fees for California Family Court Proceedings
Common Questions and Concerns 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?
We want you to have answers to these questions.
California Family Law Attorney Fee Statutes
California has five major statutes governing your rights to receive attorney fees, or your potential obligation to pay attorney fees, in dissolution, legal separation, support, and custody matters. There are a number of lesser statutes that also may affect contributions to fees in other family law proceedings.
There are three basic themes that govern whether you may be entitled to receive or may 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; and (3) any conduct by either party that may justify an attorney fee award as a form of sanction for bad behavior. In all cases the relative financial circumstances of the parties, including but not limited to income streams, must be evaluated.
At the moment you file for a Dissolution or Legal Separation certain "automatic temporary restraining orders" (ATRO's) go into effect by operation of law. They are contained in the Summons that accompanies the divorce filing. You can find a copy of the Summons by visiting our Family Law Form Library.
When you file a dissolution proceeding, the Petition that you sign notifies you that you are bound by these ATRO's. 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 or not.
Family Code § 2040 governs ATRO's. Among other things, its effect is to prohibit either party from taking certain action that might impair the other's interests. ATRO's extend both to the community property and what you believe to be your separate property. Chief among these statutory restrictions is an injunction that neither you nor your 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.
FC section 2040(2) contains an exception relating to using community or separate funds (including the other party's separate assets or credit) to pay an attorney fees retainer. 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 at once to hire your divorce lawyer at once. You do not need to tell your ex-partner first.
Attorney Fees After Proceedings Begin
The chief California statute governing attorney fees in dissolution settings is 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."
Courts may from time to time, upon request, "augment or modify the original award ... as may be reasonably necessary for the prosecution or defense of the proceeding, or any proceeding related thereto,..."
Family Code section 2032 amplifies what the Court must consider in making or refusing an attorney fee request, and where that money can come from. 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 likely 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.
Contact the Dissolution Law Firm of Thurman W. Arnold III
"Knowledge is Power, Which Can Be Harnessed But Need Not Be Abused"