There are several methods to use to request that a portion of your attorney’s fees be paid by the other party.
Attorney Fees Generally
A family law court has authority to make attorney fee awards throughout the case. In a proceeding for dissolution of marriage, 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 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. Fam C § 2030(a)(1).
Court’s Ability to Award Attorney’s Fees
Trial courts enjoy broad discretion in making an award of attorney fees and costs, and the exercise of that discretion is guided by statute. Marriage of Cheriton (2001) 92 CA4th 269, 314. In general, an award will be overturned on appeal only if, considering the evidence most favorably in support of the order, no judge could reasonably have made the order. Marriage of Green (1992) 6 CA4th 584, 589. Family law judges must have maximum flexibility to ensure that each party has means to pay for adequate representation. Marriage of Hobdy (2004) 123 CA4th 360, 371.
Need & Ability
Most awards of attorney fees and costs in marital actions are made under Fam C §2032 and are based on the parties’ relative circumstances (“need” and “ability to pay”). The scope of the costs recoverable is broader in such actions than in civil actions generally. Family Code §2030(a).
The primary purpose of an award of attorney fees and costs in a family law case is to provide each of the parties with sufficient funds to properly litigate the controversy. Marriage of Dietz (2009) 176 CA4th 387, 406; Marriage of Cheriton (2001) 92 CA4th 269, 318; Marriage of Huntington (1992) 10 CA4th 1513. In determining what is just and reasonable under the circumstances, a court must consider the need for the award to enable each party, “to the extent practical,” to have sufficient financial resources to present the party’s case adequately. Fam C §2032(b). Marriage of Rosen (2002) 105 CA4th 808, 829. The fact that a party has ample resources to pay attorney fees does not necessarily bar an order for attorney fees and costs, because one party’s circumstances are relative to that of the other party. Marriage of Sorge (2012) 202 CA4th 626, 659. Normally, the court will analyze relative income for fee purposes after considering relative net income after support is paid.
Consideration of a Party’s Trial Tactics and Other Considerations
The trial court may also consider a party’s trial tactics in a Fam C §2030 award. Marriage of Falcone & Fyke (2012) 203 CA4th 964, 975; Marriage of Tharp (2010) 188 CA4th 1295, 1314; Marriage of Drake (1997) 53 CA4th 1139, 1157. A trial court may order a party, the party's attorney, or both to pay any reasonable expenses, including attorney's fees, incurred by another party as a result of bad-faith actions or tactics that are frivolous or solely intended to cause unnecessary delay. CCP 128.5 (a).
Attorney’s Fees Based on Sanctionable Conduct
Another way to obtain fees in through Family Code 271. The court can award sanctions for “attorney’s fees and costs on the extent to which the conduct of each party or attorney furthers or frustrates the policy of the law to promote settlement of litigation and, where possible, to reduce the cost of litigation by encouraging cooperation between the parties and attorneys.” This would be appropriate when one spouse is uncooperative and/or unnecessarily drives up litigation fees and costs.
Therefore, it is important to sit down with an attorney to discuss the potential attorney’s fees you may be able to recover. While it is impossible to determine the amount the court may grant you, an attorney may be able to address the likelihood of recovery.
If you are experiencing this issue, please feel free to contact our offices for a consultation based on the particular facts of your case. All materials have been prepared for general information purposes only to permit you to learn more about our firm, our services and the experience of our attorneys. The information presented is not legal advice, is not to be acted on as such, may not be current and is subject to change without notice.