THURMAN'S "FAMILY LAW ATTORNEY FEES" TIPS
Can I Obtain Attorney Fees From My Spouse's Separate Property?
Family Code section 2032 underwent important revisions effective January 1, 2011, as a result of the Elkins Task Force Recommendations, specifically with respect to subsection (d) involving complex divorce litigation cases. The core point of those changes in the law were to increase citizen access to justice under the California Family Law Act.
Section 2032 is extremely useful for two reasons, in particular: (1) it makes clear that when a family court is requested to order that the more financially privileged spouse or domestic partner contribute towards the attorney fees and forensic expenses of the less wealthy spouse, upon inquiring into the parties' relative financial circumstances, the fact that the requesting party could conceivably pay for some or all of their attorney fees should not of itself deprive them of a contribution from the opposing side - especially where paying these fees will exhaust all of their resources or their share of the community property estate, while leaving the "in-spouse" financially intact. A balancing test that considers the complexities of the case is required. This makes sense, since it is unfair to deny a less advantaged spouse access to competent representation, along with the practical consequence of possibly starving the less-moneyed spouse into capitulating to whatever unreasonable demands their more fortunate, and not infrequently more litigious, spouse chooses to make. (2) It permits family judges to order separate property contributions from one spouse to the other where one side's superior economic power is great enough that the burden will not exhaust their own resources, in light of their separate property earnings (usually generated after separation) or their separate property net worth, IF the greater resource party has sufficient assets to not only assure their own quality legal representation, but also to ensure that their less privileged may as well.
Family Code section 2032 is therefore a critical statute for evening the playing field and equalizing power in marital and registered partner dissolutions and legal separations. Yet some family law judges, and possibly older ones especially, have philosophical difficulties with awarding attorney fees from a party's separate property and resist the clear policy import of section 2032 by refusing to exercise their discretion to award them. Perhaps this is not surprising - historically there has been a strong protective attitude towards separate property in this State. Since 1850 California has enshrined separate property protections within Article 1, section 2 of the California Constitution.
I recently heard about one local case in which a highly regarded Los Angeles retired judge (and author of legal treatises), served as a private judge in a high asset case where the parties had "opted out" of the family court system. Husband had an alleged separate estate worth $7 million; he claimed that much of it belonged to him solely, even though some of it was acquired during marriage. The wife only had whatever she might receive from the division of the community estate - which the husband still controlled, worth according to husband about $2 million (leaving her supposed share as $1 million). Husband disputed wife's one-half beyond the first million. Attorneys fees and accounting forensics approximated $400,000 for each side, largely in part because of husband's shenanigans and refusals to provide information voluntarily. The private judge reportedly refused to order the husband to contribute anything to wife's fees from his alleged SP, with the consequence that she was finally left with two choices: either exhaust her share of what she was entitled to receive at the conclusion of the case (assuming her attorneys were willing to take it to its conclusion "on the come" and wait to be paid), or give up. The financial deprivation starved her into making a much less favorable settlement than what she might have received had she had the necessary staying power. It did sound as if during the litigation the wife had made a number of very bad choices - like refusing to work even after the divorce dragged on past half the length of the marriage. Husband's attorney focused on how "undeserving" she was, a common strategy in divorce court to distract the elderly judge's attention from her right to equal legal representation and therefore due process.
Also, husband's attorneys clearly intended to run wife's fees as high as they could go until she reached the breaking point. Sadly, I've noticed that this is a device used by many Los Angeles attorneys, and I don't know anyone (outside of L.A.) who would disagree with that unfortunate characterization. Some divorce attorneys notoriously slander the other side, hoping to foster a bias against the asking party in the mind of the Court so that they will not be awarded attorney fees, which is too often one sure way to win a case without a trial ever taking place!
Whether a party is "deserving" is not how someone's right to enjoy an even-playing field ought be measured, although it may be relevant to questions involving spousal and even child support, and the court retains the power to reallocate fees awarded under section 2032 at time of trial to the extent that wife's conduct contributed to the mess - but at least she would have the opportunity to get to a trial, a right and ability that a wealthier spouse always has. If you are forced to make a FC section 2032 separate property fee application, expect to hear similar arguments. It is always a sound strategy to behave diligently and honorably in the course of divorce proceedings, especially if you are hoping that the Court will somehow aid you!
I recommend that litigants submit extensive Points and Authorities when faced with a rich "in-spouse" and a relatively poor "out-spouse," along with detailed and accurate declarations from the parties and their attorney, and a thorough economic analysis of the community and separate estates. If the other side successfully casts the requesting party in an undeserving light, they may get skunked.
The good news is that the competent family law judges do not hesitate to award fees from separate property when appropriate, and the pendulum has swung in the direction of ensuring that both sides have the money to have adequate representation. The Elkins Recommendations were intended to foster this result, and they have helped in a big way. Again, the most enlightened judges know that cases settle and don't use up valuable judicial resources exactly when there is an equality of access to the best divorce attorneys who, in my opinion, tend to be Certified Family Law Specialists!
CALIFORNIA FAMILY CODE
Division 6. NULLITY, DISSOLUTION, AND LEGAL SEPARATION
Part 1. GENERAL PROVISIONS
Chapter 3.5. ATTORNEY'S FEES AND COSTS
(a) The court may make an award of attorney's fees and costs under Section 2030 or
2031 where the making of the award, and the amount of the award, are just and reasonable under the relative circumstances of the respective parties.
(b) In determining what is just and reasonable under the relative circumstances, the court shall take into consideration 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, taking into consideration, to the extent relevant, the circumstances of the respective parties described in Section 4320. The 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 an order that the other party pay part or all of the fees and costs requested. Financial resources are only one factor for the court to consider in determining how to apportion the overall cost of the litigation equitably between the parties under their relative circumstances.
(c) 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.
(d) Either party may, at any time before the hearing of the cause on the merits, on noticed motion, request the court to make a finding that the case involves complex or substantial issues of fact or law related to property rights, visitation, custody, or support. Upon that finding, the court may in its discretion determine the appropriate, equitable allocation of attorney's fees, court costs, expert fees, and consultant fees between the parties. The court order may provide for the allocation of separate or community assets, security against these assets, and for payments from income or anticipated income of either party for the purpose described in this subdivision and for the benefit of one or both parties. Payments shall be authorized only on agreement of the parties or, in the absence thereof, by court order. The court may order that a referee be appointed pursuant to Section 639 of the Code of Civil Procedure to oversee the allocation of fees and costs.