In personal injury and some other similar type cases, you frequently do not pay attorney’s fees up front. Attorneys practicing in these areas generally ask for a contingency fee agreement, in which the attorney agrees to accept a fixed percentage of the monetary recovery for the case – a percentage of the amount finally paid to the client. If you lose, you only pay the costs but no attorney’s fees.
For family law cases, California attorneys are prohibited from entering into agreements on a contingency fee basis. But in California it is possible to get your attorney’s fees paid by your spouse.
The Legal Standard for Need-Based Attorney’s Fees
Family Code section 2030 through 2032 directs judges to make need-based attorney’s fee orders (awards) to a financially disadvantaged spouse. These statutes are based on the California public policy to “ensure that each party has access to legal representation” in dissolution, nullity or legal separation cases – or in any subsequent proceeding after entry of a related judgment. And, under these statutes, family court judges are supposed to look at the financial disparity between the parties and create a “level playing field” so that a lower-earning spouse can pay attorneys and experts to litigate the issues in the same manner as the spouse with higher earnings. Marriage of Tharp (2010) 188 Cal.App.4th 1295, 1315.
And, it’s not only about income. Judges may consider all evidence of assets, and abilities, including investment and income-producing properties.” Id. There are also situations where a need-based award can be ordered for a spouse who has resources to pay her attorney’s fees. Marriage of Sorge (2012) 202 Cal.App.4th 626.
The decision to award need-based attorney’s fees is discretionary. Judges have wide latitude in deciding to make an award and in the amount of the award. But, when there is a financial disparity, judges are required at minimum to award some type of need-based fees. Family Code section 2030 need-based fee awards are not based on who wins. Marriage of Popenhager(1979) 99 Cal.App.3d 514, 525. However, if a 2030 need-based fee award is not applicable, Family Code section 3652 can be used by a prevailing party in a modification, termination or set aside of a support order.
Under Family Code section 2030 through 2032, what is required of family law judges is actually very specific and spelled out in the law. Judges are required to make an analysis of whether a need-based attorney’s fee award is “just and reasonable under the relative circumstances of the respective parties.” Fam. Code §2032. They are specifically prohibited from taking a cursory look at the financial picture and “checking boxes on a form.” Marriage of Shimkus (2016) 244 Cal.App.4th 1262, 1280. Instead, they are required to make findings on “whether an award of attorney’s fees and costs is appropriate, whether there is a disparity in access to funds to retain counsel, and whether one party is able to pay for legal representation of both parties.” Fam. Code §2030. If there is disparity in access and ability to pay, judges are required to make an order awarding attorney’s fees and costs. The public policy to ensure equal access is so strong, that when there is financial disparity judges MUST make some kind of order for attorney’s fees and costs.
How to Ask for Need-Based Fees in an Orange County Divorce
There are times when a busy family court judge does not make the required analysis and will not award need-based attorney’s fees unless the disparity is glaringly obvious. This is why it is critical that you carefully prepare your request for attorney’s fees.
You can request attorney’s fees using FL-300 Request for Order. With your Request for Order you will also want to ask your judge for a specific amount. Ideally, you should have an experienced family law attorney file the Request for Order for you with all the required and supporting declarations. If not, you will want to make sure you submit all the required declarations with your request, including an Income and Expense Declaration providing your judge with your financial information.
You must submit a thorough Income and Expense Declaration with the proper attachments. For example, one of the questions on the Income and Expense Declaration asks what you estimate is the other party’s income (question number 4), so you will want to attach a detailed explanation of the reasons supporting your estimate. You can even attach their pay stubs or other documentary evidence. You cannot attach tax returns, but you must bring them with you to the hearing. One thing that you should always keep in mind with
Never lie on an Income and Expense Declarations. Don’t even intentionally overestimate or underestimate. Judges and experienced family law attorneys can easily pick out inconsistencies and then cross-examine you to get to the truth. Once your credibility with a judge is damaged, it is very difficult to repair it.
Applicable to Other Cases
Family Code section 2030 need-based fees can also be awarded in post-judgment modification proceedings. So, if you think you qualify for a modification of child or spousal support, you may be able to get need-based attorney’s fees from your ex-spouse. But, you should consult with an experienced family law attorney to see if you can modify support, because there are certain requirements that need to be met before you have any hope of a modification.
Need-based attorney fee awards can also be ordered in exclusive custody actions and paternity cases. (Family Code, §§ 3121 & 7605, 7640.) Judges can order need-based attorney fees for custody or visitation proceedings after a judgment has been entered regarding parentage. (Robert J. v. Catherin D. (2005) 134 Cal.App.4th 1392, 1395.)
Another way to get attorney’s fees from your spouse is by way of sanctions under Family Code section 271. This is not based on need, but behavior. If your spouse or ex-spouse is behaving badly during litigation – frustrating the policy to promote settlement – you can ask the judge to sanction the other party. For example, one case awarded $100,000 to a wife whose husband refused to account for the proceeds from the sale of community property forcing his wife to bring motion after motion to get him to comply. Marriage of Quay (1993) 18 Cal.App.4th 961, 970.
There are other code sections that provide for sanctions, such as when a party makes false child abuse allegations to gain an advantage in custody litigation. Family Code, §3027.1(a). But it is important to consult with an experienced family law attorney to see which ones may help you obtain attorney fees for an Orange County divorce.