THURMAN'S "DOMESTIC VIOLENCE ATTORNEY FEES" TIPS
CAL Family Code Section 6344:
How To Recover Or Avoid Attorney Fees In Domestic Violence Cases!
Family Code section 6344 authorizes family courts to order reimbursement for attorney fees incurred
in prosecuting or defending a DV case.
Section 6344 does not contemplate payment in advance in order to be able
to hire a lawyer and file the action or when defending oneself from allegations
of domestic abuse. Keeping in mind that most family law and divorce related
attorney fee statutes (particularly where the parties are married or registered
domestic partners) speak in terms of the parties' respective needs
and abilities to pay their own or the other party's attorney fees
without reference to who wins, section 6344 imposes a slightly different
two-prong burden: (1) To be entitled to an attorney fee award, a party
- and it can be either - must "prevail." Although this section
doesn't expressly state it, for the petitioner this means that some
or all of the orders requested are issued, and for the respondent that
none of the requested orders are granted.
Perhaps oddly, the statute makes no direct reference to how the court should
evaluate whether to award attorney fees for a Respondent who successfully
defends against the DV accusations. It only addresses what to look at
if the Petitioner prevails. After first deciding that the requesting party
"cannot afford to pay" for their attorney (which of course has
already happened, but maybe through a loan from family or friends), (2)
the court then considers the parties' respective abilities to pay
including all relevant factors. Undoubtedly, most family court judges
will apply the same standards to both parties. However, I think that this
difference reflects a legislative public policy decision that courts should
not penalize unsuccessful DV accusers absent egregious facts by forcing
them to contribute to the alleged perpetrator's costs.
If you are a losing Petitioner, point out the apparent differences in how
the statute treats the two sides and argue that awarding attorney fees
against a requesting party like you would have a "chilling effect"
on their willingness to seek government intervention and protection, possibly
with catastrophic consequences the next time. The court will not award
attorney fees against you in close cases where it felt that you just barely
failed to meet you burden of proof. By the way, because of the way this
statute is worded you may have a better chance of recovering your attorney
fees if you had to borrow the money to hire your attorney, instead of
having sufficient money on hand to accomplish it.
If you are the winning Respondent, and particularly if the other party
appears to have misused the DV procedures to obtain a custody advantage,
exclusive use of the home, or as a set up to anticipate and avoid paying
spousal support or to fluff out their alimony entitlement claims, point
all that out. Argue that the other party paid their own attorney from
their own funds, and demonstrably can afford it. If, in addition, the
allegations arguably didn't meet the DV and "abuse" definitions
set forth in Family Code
section 6203 and
section 6320,or if the Petitioner presented no independent corroborating evidence,
urge that courts must impose consequences for those who manipulate the
justice system and remind the court how serious the consequences could
have been had he or she not spent what was required to clear their name!
If you had to borrow the money from friends or family to hire your attorney,
make that known.
Finally, remind the court that the Petitioner's burden of proof was
merely by a "preponderance of the evidence," and that their
failure to meet that burden demonstrates how flimsy the claims were!
CALIFORNIA FAMILY CODE
Family Code section 6344
(a) After notice and a hearing, the court may issue an order for the payment
of attorney's fees and costs of the prevailing party.
(b) In any action in which the petitioner is the prevailing party and cannot
afford to pay for the attorney's fees and costs, the court shall,
if appropriate based on the parties' respective abilities to pay,
order that the respondent pay petitioner's attorney's fees and
costs for commencing and maintaining the proceeding. Whether the respondent
shall be ordered to pay attorney's fees and costs for the prevailing
petitioner, and what amount shall be paid, shall be determined based upon
(1) the respective incomes and needs of the parties, and (2) any factors
affecting the parties' respective abilities to pay.