Family Code section 272 - "Attorney Fees to Prior Attorney"

THURMAN'S "ATTORNEY FEES" TIPS

Family Code Section 272:

How Do I Recover Fees Ordered to My Prior Divorce Lawyer?

Family Code section 272 may be useful if you've fired your former attorney or if he or she has quit your case, where an order for attorney fees issued in their name. Particularly assuming that they've not earned all those fees, this assures that the monies will be paid to your new attorney. In my experience, if your former attorney has billed an amount which equals or is greater than the amount awarded, even if the other party is paying them in monthly installments and there is still a balance that that party still owes, most judges will not deprive the first attorney of their fees. However, if that attorney managed to anger the Court by over-zealous behaviors, or by failing to attend hearings on time or otherwise doing a substandard job, the result could be different.

Most attorneys reasonably expect you to agree that if a family court awards fees, they be ordered payable to the attorney directly and not the party. That is certainly my practice, and it is reasonable. However, if the fee order reads that they are payable to you, then you and not your former divorce lawyer are entitled to them. Notice the procedural requirements in subsection (c). If you are the paying party, keep in mind that you want your spouse's new attorney to get paid with the old fee order since otherwise you may see a second application for attorney fees - therefore, I recommend that where there is still money you owe on an old attorney fee order that you meet and confer (or as appropriate have your attorney do so) with the new attorney to try to figure a way whereby you can safely pay the second lawyer - but be careful, you don't want to pay this money to attorney number 2 only to find that attorney number 1 sues you for the balance otherwise remaining under the fee award!

Have more questions about attorney fee awards in divorce and family law cases?


CALIFORNIA FAMILY CODE

Family Code section 272

(a) Where the court orders one of the parties to pay attorney' s fees and costs for the benefit of the other party, the fees and costs may, in the discretion of the court, be made payable in whole or in part to the attorney entitled thereto.
(b) Subject to subdivision (c), the order providing for payment of the attorney's fees and costs may be enforced directly by the attorney in the attorney's own name or by the party in whose behalf the order was made.
(c) If the attorney has ceased to be the attorney for the party in whose behalf the order was made, the attorney may enforce the order only if it appears of record that the attorney has given to the former client or successor counsel 10 days' written notice of the application for enforcement of the order. During the 10-day period, the client may file in the proceeding a motion directed to the former attorney for partial or total reallocation of fees and costs to cover the services and cost of successor counsel. On the filing of the motion, the enforcement of the order by the former attorney shall be stayed until the court has resolved the motion.

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