Litigating a 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 attorney’s fees.
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 party.”
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.