The cost of hiring an attorney to handle a divorce, domestic violence issue, or other family law dispute can be substantial, depending on the circumstances and complexities surrounding your case. In fact, concerns about the expense often keep people from taking action to get out of a bad situation.
It is important to realize that sometimes, the court will order one party to pay a portion of the attorney fees incurred by the other party, especially if one party earns more than the other or has acted wrongfully. However, while there are many situations in family law where a judge has discretion to order one party to pay the attorney’s fees and costs of the other party, usually the judge also has the ability to refuse to order payment of fees and costs. Moreover, if a judge orders a payment, it often only covers part of the costs.
It is a good idea to talk to your attorney if this is a primary consideration. An experienced family law attorney can assess the situation and give you an idea of how likely a court would be to award attorney’s fees. Your attorney could also negotiate a settlement that involves payment of your legal expenses. In this post, we explore some of the reasons courts can order one party to pay the legal costs of the other in a family law case.
California Lawmakers Want Both Parties to Access to an Attorney in Divorce Cases
In divorce cases and legal actions related to the outcome of the divorce, Section 2030(a)(1) of the California Family Code specifies that “the court shall ensure that each party has access to legal representation, including access early in the proceedings.” They are to do this by ordering one party to pay “whatever amount is reasonably necessary for attorney’s fees” as well as the cost of pursuing or defending the case.
However, the court is directed to order payment of attorney’s fees only if the party requesting assistance lacks the ability to pay and the other party has the ability to pay the costs of legal fees for both. In other words, the issue is decided purely based on need rather than the conduct of the parties.
When One Spouse Controls the Accounts
What can you do when you need to hire a divorce attorney but cannot afford the retainer because your spouse earns all the family income and holds the purse strings? Before a petition for divorce is filed, both spouses have equal right to community property, so even if your spouse is the breadwinner, you still own half of the income that spouse earns. Unless a court has placed an injunction or freeze on an account, you have the perfect right to remove money from a joint checking account to pay an attorney.
If all the accounts are solely in your spouse’s name, you may want to talk to your attorney about payment arrangements. While you still have a legal right to marital funds, accessing them quickly could be challenging. If you are concerned that your spouse might try to remove all assets from accounts and attempt to hide them, your attorney might ask the court to issue an order not to sell assets and to enjoin removal of funds from accounts.
If Your Ex Refuses to Cooperate a California Court Can Order Them to Pay Your Attorney’s Fees
In addition to the need-based provision of Section 2030, California family law statutes offer numerous other provisions that give courts discretion to order one party to pay the other’s attorney’s fees. The provision with the broadest application is Section 271 of the Family Law Code. Under this statute, the court can require one party to pay legal fees of the other when the party acts in a way that unnecessarily delays resolution of the legal issues, driving up the cost of the case. Rather than ordering one party to pay the other’s fees as a matter of financial equity, the order is made as a sanction to punish wrongful tactics.
When Your Ex Acts Wrongfully the Court May Require Them to Cover Legal Costs
It only seems fair that when one party acts wrongfully and the other incurs legal costs to respond, the party in the wrong should be required to pay those costs. For instance, if one parent has refused the other opportunity to exercise their custody and visitation rights, and legal action is taken to enforce those rights, the parent who refused the rights can be required to pay the legal expenses of the other parent.
The California Family Code contains numerous provisions regarding payment of attorney’s fees in specific situations such as when one party makes false child abuse allegations during a custody case, or refuses to pay their share of health care expenses. In domestic violence cases, the party at fault can also be required to pay the other party’s legal costs.
Holstrom, Block & Parke, APLC Can You Recover Legal Fees
The Certified Family Law Specialists at Holstrom, Block & Parke, APLC understand all the different provisions that can be used to require a former partner to pay attorney’s fees and other costs in divorce, custody cases, domestic violence situations, and other family law matters. Call 855-426-9111 or contact us online to talk to us today about the ways we can protect you.