Attorneys fees and costs

Many people going through a divorce or facing post-judgment family law issues find themselves at a disadvantage because the other party can afford legal representation and they cannot. Fortunately, the California Legislature believes that there should be a “level playing field,” and has created laws that allow the disadvantaged party to request attorneys fees and costs from the other.

Specifically, California Family Code § 2030 states:

2030. (a) (1) In a proceeding for dissolution of marriage, nullity of marriage, or legal separation of the parties, and in any proceeding subsequent to entry of a related judgment, the court shall ensure that each party has access to legal representation, including access early in the proceedings, to preserve each party’s rights by ordering, if necessary based on the income and needs assessments, one party, except a governmental entity, to pay to the other party, or to the other party’s attorney, whatever amount is reasonably necessary for attorney’s fees and for the cost of maintaining or defending the proceeding during the pendency of the proceeding.

That code section provides for “need based” fees, and in doing so, the Court has to determine whether there is a sufficient difference in the parties’ respective incomes, assets, and/or access to funds such that an award of attorney’s fees is justified. However, the Court must also find that the other party has sufficient income, assets, and/or access to funds to pay an award of fees and costs. Section 2030 of the California Family Code is by no means meant to be a guarantee that one party will pay one hundred percent of the fees and costs of the other party, but instead, it is meant to ensure equal access to legal representation, which usually leads to a payment of a portion of the others fees and costs.

Attorney’s fees and costs can be requested in any proceeding for dissolution of marriage, legal separation, and even for post-judgment matters. An award of fees can include fees incurred for work either done before or after the start of the proceedings. Additionally, “the court shall augment or modify the original award for attorney’s fees and costs as may be reasonably necessary for the prosecution or defense of the proceeding, or any proceeding related thereto, including after an appeal has been concluded.”That means that a party can make multiple requests for fees, and the court can make multiple attorney fee awards as may be necessary to maintain the ongoing litigation.

The process for requesting fees in a dissolution proceeding requires the filing of a Request for Order (RFO), including, but not limited to, filing an FL-300 and accompanying declarations, among other mandatory forms such as a current Income and Expense Declaration (FL-150) with the appropriate supporting documentation. Although not always occurring in practice, pursuant to Family Code section 2031(a)(2), the court shall make the attorney fee award within fifteen days after the request is heard (again that rarely happens in practice).

The thought of having to pay for the other party’s attorney’s fees and costs may seem unfair to some (particularly the paying party), but these sorts of awards may be necessary to ensure that both parties have access to competent legal representation (it is not a form of a sanction). If you find yourself in need of representation, but do not think you can afford it, you should call our office to determine whether or not you may qualify for a “needs based” award under Family Code section 2030.

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