divorce can be expensive, depending on the circumstances involved in a specific
case. The relative wealth of the parties and the involvement of minor
children can make divorce litigation a financially burdensome endeavor.
In some cases, one party has the financial security to hire attorneys while
the other may not. As a result, the rules regarding awarding attorney’s
fees in divorce cases can be complicated. This blog discusses specific
rules under California law that dictate how attorney’s fees are awarded.
When to Request Attorney’s Fees
A party who files for divorce may request attorney’s fees when they
initially submit their petition or response with the court. When the court
issues its final judgment for the divorce, it will decide the issue of
A party requesting attorney’s fees must include information regarding
their attorney’s hourly billing rate, the nature of the litigation,
the attorney’s experience with the particular issues involved, and
any fees or costs they already incurred or expect to incur.
A court has the discretion to direct any party to pay the other party’s
attorney directly. When such an order is issued, the attorney to be paid
may file a separate action in their own name to recover those attorney’s
fees. In some cases, the court may order payment of attorney’s fees
from the community estate of the spouses. In such cases, a spouse will
pay an award for attorney’s fees out of their half of the community property.
The Respective Income and Needs of the Parties
A court must evaluate the nature of the parties’ relative wealth
and financial obligations when determining their right to attorney’s
fees. Thus, whether a disparity in the parties’ wealth, access to
financing, and the ability of one party to pay for legal representation
for both parties are all issues, the court may consider.
The Parties’ Ability to Pay
Courts will carefully asses the assets and liabilities of each party when
evaluating their ability to pay attorney’s fees. Among the factors
a court will examine concerning this issue include a spouse’s prospects
of increasing their income, even if their monthly expenses exceed their
current income. However, courts generally cannot assume that a spouse’s
family will unconditionally support them financially when evaluating their
access to sources of wealth.
Noncooperation Regarding Settlements
It is California public policy to emphasize and foster opportunities for
settlement in divorce cases. Settlement helps relieve the burden that
divorce cases impose on the courts. As a result, Family Code Section 271
allows courts to award attorney’s fees based on a party’s
conduct which either advances or frustrates the prospect of settlement.
Under Section 128.5 of California’s Code of Civil Procedure, “[a]
trial court may order a party, the party’s attorney, or both, to
pay the reasonable expenses, including attorney’s fees, incurred
by another party as a result of actions or tactics, made in bad faith,
that are frivolous or solely intended to cause unnecessary delay.”
Section 128.5 further provides that “frivolous” means “totally
and completely without merit or for the sole purpose of harassing an opposing
For example, a party who refuses to cooperate with legitimate discovery
requests may be grounds for sanctions. Additionally, an order for temporary
custody alleging baseless claims that the other party presented a threat
to their minor children will justify the court in awarding monetary sanctions
against said party or their attorney.
Pendente Lite Orders for Attorney’s Fees
California’s public policy regarding divorce litigation also seeks
to give both parties the ability to hire legal representation necessary
for maintaining or defending divorce proceedings. As a result, a court
may award temporary orders for attorneys fees pending divorce proceedings.
Also known as a “pendente lite” order, a temporary order to
pay attorney’s fees for the other party is enforceable during divorce
proceedings. Such an order allows a party who cannot afford attorney’s
fees to retain legal counsel. Courts will examine the same factors regarding
the paying spouse’s ability to pay and the receiving spouse’s
need for attorney’s fees.
Consult a Dedicated Westlake Village Divorce Attorney for Advice
Divorce litigation is often a mentally, physically, and emotionally taxing
process. The longer a divorce takes, the more expensive it potentially
becomes. That is why you should call an experienced Westlake Village divorce
attorney who is dedicated to promoting the best interests of you and your
family. At the
Law Offices of Jeffrey S. Graff, our clients benefit from compassionate and cost-effective legal representation
puts your family’s financial interests about our own business interests
– and so can you.
Call the Law Offices of Jeffrey S. Graff at (805) 633-4999 or
contact us online to learn how we can help you handle your divorce issues.