who pays attorney fees in divorce?
When one spouse’s income is significantly higher than another spouse's, high income spouse would pay attorney fees for his/her spouse provided that certain requirements are met. The low-income spouse should not have a cash available to pay for attorney fees and no access to the community funds. Also , if one spouse intentionally dragging litigation with unnecessary requests acting in bad faith, the court would order this party to pay his/her spouse attorney fees.
This page covers who pays attorney fees in divorce, how it is decided and enforced. People usually think that each party has to pay his/her attorney fees. It is not always correct.
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The court decides and enforces who pays attorney fees in divorce based on the following information:
- Financial circumstances of the spouses (compared relatively to each-other)
- Non-cooperative conduct of a spouse or an attorney to promote settlement
- Bad faith actions or tactics
- Support required for court proceedings
This court is empowered with authority to dictate who pays attorney fees in divorce by the following codes:
Under family Code 2010, the court may order any party, except a governmental entity, to pay the amount reasonably necessary for attorney fees in divorce, , nullity of marriage, or legal separation.
Under Family Code 7605, these provisions also allow a spouse who lacks the financial ability to hire an attorney to request the court to order the other spouse to pay a reasonable amount to allow the unrepresented party to retain an attorney in a timely manner.
COURT AUTHORITY TO ORDER ATTORNEY FEES IN DIVORCE
A court must ensure that each spouse in the divorce action has access to legal representation, including access early in the divorce. To do so, the court may under family code 2030 order one party to pay the other, or the others’ attorney, whatever amount is reasonably necessary for attorney fees and costs during the pendency of the proceeding. In determining who pays attorney fees in divorce and costs, the court must make the following findings:
- Whether an award is appropriate;
- 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.
The court’s findings on each of the three questions must be on the record or in writing.
The attorney fees awarded in a divorce case may be made for services and costs incurred before, during and after commencement of the proceeding. At any time before entry of judgment, including after any appeal has been concluded, the court may modify an original award as may be reasonably necessary to maintain or defend the proceeding or any related proceeding.
TYPES OF AWARDS
As mentioned above, there are four types of information used to determine who pays attorney fees in divorce and related proceedings:
- Financial circumstances of the spouses (compared relatively to each-other)
- Non-cooperative conduct of a spouse or an attorney to promote settlement
- Bad faith actions or tactics
- Support required for court proceedings
Some explanation is provided below:
- Attorney Fees in Divorce Based on Relative Circumstances of Parties.
The court can award cost and attorney fees when the amount awarded are “just and reasonable under the relative circumstances of the respective parties
At any time before trial, either spouse may ask the court to determine the equitable allocation of attorney fees, court costs, and expert and consultant fees between the parties. The party files a noticed motion requesting the court to make a finding that the case involves complex or substantial issues of fact or law related to property rights, visitation, custody, or support. On making the requested finding, the court may; in its discretion, determine the appropriate, equitable allocation of attorney fees, court costs, expert fees and consultant fees, as well as separate or community assets, security against such assets, and payments from income or anticipated income of either party to achieve the desired equitable allocation and for the benefit of one or both parties. Payments may be authorized only on the parties’ agreement or court order.
- As Sanction for Frustrating Policy of Law to Promote Settlement and Encourage Cooperation or for Violation of Court Rules
The court may base an award of attorney fees and costs on the extent to which each spouse’s or attorney’s conduct furthers or frustrates the policy of the law to promote settlement and to reduce the cost of litigation by encouraging cooperation between the parties and attorneys. For example, sanctions imposed for filing largely frivolous contempt allegations.
Note the court may impose sanctions even without finding of frivolity.
In any family law case, a court may order a person, after written notice and an opportunity to be heard, to pay reasonable monetary sanctions to the court or to an aggrieved person, or both, for failure without good cause to comply with the applicable court rules. The sanction must not put an unreasonable financial burden on the person ordered to pay.
A court may order a person who has violated an applicable court rule to pay to the party aggrieved by the violation that party’s reasonable expenses, including reasonable attorney fees and costs, incurred in connection with the motion or request for order for sanctions.
3. Bad faith actions or tactics
Dishonest or malicious actions.
4. In Support Enforcement Proceedings
In order to ensure that each party has access to legal representation to preserve each party’s rights, a court must award reasonable attorney fees to the support payee in any child or spousal support enforcement proceeding, on determining (1) an award of attorney fees and costs is appropriate under Family Code 3557(2) there is a disparity in access to funds to retain counsel, and (3) one party is able to pay for legal representation for both parties.
In summary, the most common reason a court would order you or your spouse to pay some (and sometimes though less frequently all) of the other’s lawyer fees is if there is a significant disparity between each of the incomes. Orange County courts, like most courts, must look to each party’s need and ability to pay lawyer fees.There are exceptions to this rule including if one spouse has breached his or her fiduciary duty (typically through hiding community property money or assets or related conduct) to the other in which case the court could order the spouse that has committed this wrongful act to pay all of the other spouse’s lawyer.
If you have questions about who pays attorney fees in divorce or any other family and estate planning related matter, please contact us
or call 714-390-3766
