Family Code section 2034 [Revised 2011] - "Family Law Attorney's Real Property Liens"


CAL Family Code Section 2034:

How Do I Object To A Flarpl?

Family Code section 2034 sets forth the grounds for objecting to a FLARPL, along with the family court's power to deny or limit them. See Family Code section 2033 if you'd like to know what a FLARPL is or to read more of my thoughts about them.

Subsection (a) gives judges broad discretion to refuse to allow a FLARPL if it "would otherwise be unjust", but the strongest ground for opposing a FLARPL is the argument that it would result in the unequal division of the community estate in violation of Family Code section 2550. If the other party objects, subsection (b) empowers the court to independently inquire whether the case should be denominated "complex" within the meaning of Family Code section 2032(d), and quite notably it invites him or her to consider whether a better result would be to order the objecting party to fund some portion of the applicant's attorney fees from their separate property.

This is fascinating to me - in effect the consequence for complaining about a FLARPL coming into existence may be a judge responding with "hey, fine. I've got a better idea. You dip into your own pocket to pay for her (or his) fees instead!" It follows that if the other spouse or domestic partner files a Request for Order objecting to one, the best practice in responding to the objections is to counter with a Family Code section 2032 request for attorney fees and costs from the other party's separate property cash accounts (assuming such exists). Family Code section 2034 clearly implies that if money is so tight for one party that the only way they can retain or maintain their attorney to protect their rights is to use a FLARPL, a judge must inquire more deeply about the case and first consider whether separate property fees should be awarded instead!

Subsection (c) gives the family court continuing jurisdiction to resolve any disputes between the spouses, or between the lien holder attorney and either spouse, if requested to do so. Apparently this jurisdiction is not exclusive, but usually it would be the better choice if disputes or enforcement issues arise down the road.


Family Code section 2034

(a) On application of either party, the court may deny the family law attorney's real property lien described in Section 2033 based on a finding that the encumbrance would likely result in an unequal division of property because it would impair the encumbering party's ability to meet his or her fair share of the community obligations or would otherwise be unjust under the circumstances of the case. The court may also for good cause limit the amount of the family law attorney's real property lien. A limitation by the court is not to be construed as a determination of reasonable attorney's fees.
(b) On receiving an objection to the establishment of a family law attorney's real property lien, the court may on its own motion determine whether the case involves complex or substantial issues of fact or law related to property rights, visitation, custody, or support. If the court finds that the case involves one or more of these complex or substantial issues, the court may determine the appropriate, equitable allocation of fees and costs as provided in subdivision (d) of Section 2032.
(c) The court has jurisdiction to resolve any dispute arising from the existence of a family law attorney's real property lien.

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