Making Attorneys Accessible to Family Law Litigants: 2011 ATTORNEY FEE REVISIONS TO THE FAMILY CODE

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