Depending on the circumstances of the case, the cost of attorney fees can vary widely. Some of the determining factors in the cost of the case include the complexity of the case in terms of community property and separate property claims, the duration of the marriage, whether there are minor children from the marriage, and most of all, how amicable (or not) the parties are in reaching a settlement of their matter.
Obviously, the more agreeable the parties can be in resolving all the issues, the less costly the divorce will become. Avoiding the huge expense of trial is at the top of the list. Trials in California can be extremely costly in terms of attorney fees, time, and stress. The truth is most divorce cases settle out of court for this very reason. Another reason parties tend to settle out of court is that they have more of a say in the eventual outcome than if they go before the person in the black robe. In California, a judge only has the authority under the statutes to divide community property equally whereas, if the parties reach their own agreement outside of court, the division can be unequal, to a reasonable extent, and more tailored to the needs to the parties.
So, what happens when things are not so amicable, your spouse makes more money than you do and retains an attorney, and you cannot afford attorney fees one on your own? Fortunately, in California, you have some options.
Family Code Section 2030 – Need Based Attorney Fees
First, under Family Code Section 2030, you can file a motion with the court requesting your spouse to pay attorney fees. This important statute was put in place by the legislature of California to ensure that both parties had equal access to adequate representation to prevent one party from gaining an unreasonable advantage over the other purely on the basis of a superior income or financial position.
FC 2030 is referred to as a “need based” award of attorney fees to a party that is without the ability to hire an attorney. The court has the authority to order any amount that is reasonably required for attorney fees and costs to put the parties on equal footing of maintaining and defending their legal rights through the pendency of the divorce proceeding. The “need based” component comes from a disparity of income between the parties in which one party earns more income or has access to more funds than the other.
In making an award for attorney fees under FC 2030, the court considers: 1) the disparity of income between the parties; 2) whether one party can pay for both attorneys, and 3) if an award of attorney fees is “just and reasonable under the relative circumstances” of the case.
Under Family Code Section 2032, the court has broad discretion in terms of the source of the award of attorney fees and states, “The court may order payment of an award of attorney’s fees and costs from any type of property, whether community or separate, principal or income.”
A party can request attorney fees either before or during the proceeding by filing a Request for Order (motion). There is no guarantee the court will grant the request or grant all the fees requested, after considering the factors above.
Family Code Section 271
Another way to obtain attorney fees from the opposing parties is through Family Code Section 271. These attorney fees are referred to as “sanctions”. FC 271 provides in part, “…the court may base an award of 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.” Essentially what this means is if the other side is acting badly, not cooperating, delaying the case or settlement, etc., a party can file a motion and request attorney fees in the form of “sanctions” in effort to recover the cost of their own attorney fees required to response to their bad conduct, and in effort to deter further bad conduct from occurring. Due process must be provided to the party regarding the request for sanctions meaning they must be provided notice of the request and have an opportunity to be heard regarding the allegations.
Again, the court has broad discretion in terms of the payment of sanctions and it can come not only from the sanctioned parties’ income but their property as well, including that parties’ share of community property.
FC 271 sanctions are generally disfavored by the court. The court likes to see people working together toward resolution of their case, rather than wielding the sanction sword so it is a motion to be used with caution and only when really needed to assist in resolution of the matter.
If you live in Sonoma County, Mendocino County or Lake County California, Contact our Santa Rosa office today to schedule a confidential consultation.