Types of Attorney Fee Awards in Divorce
Need Based Award of Attorney Fees
Need based attorney fee awards allow both parties to have equal access to legal representation to maintain and protect their rights. California Family Code Section 2031 states the following about need based attorney fees:
(a) (1) In a proceeding for dissolution of marriage, nullity of marriage, or legal separation of the parties, and in any proceeding subsequent to entry of a related judgment, the court shall ensure that each party has access to legal representation, including access early in the proceedings, to preserve each party’s rights by ordering, if necessary based on the income and needs assessments, one party, except a governmental entity, to pay to the other party, or to the other party’s attorney, whatever amount is reasonably necessary for attorney’s fees and for the cost of maintaining or defending the proceeding during the pendency of the proceeding.
(2) When a request for attorney’s fees and costs is made, the court shall make findings on whether an award of attorney’s fees and costs under this section 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. If the findings demonstrate disparity in access and ability to pay, the court shall make an order awarding attorney’s fees and costs. A party who lacks the financial ability to hire an attorney may request, as an in pro per litigant, that the court order the other party, if that other party has the financial ability, to pay a reasonable amount to allow the unrepresented party to retain an attorney in a timely manner before proceedings in the matter go forward.
(b) Attorney’s fees and costs within this section may be awarded for legal services rendered or costs incurred before or after the commencement of the proceeding.
The income and assets of both parties will be examined in order for the court to make an equitable fee award so both parties can be represented.
Sanction Based Award of Attorney Fees
Attorney fees may also be awarded when the conduct of either party justifies awarding attorney fees to sanction (penalize) bad behavior. The court will award attorney fees and costs to the extent the conduct of each party or attorney furthers or frustrates the good faith settlement of litigation or where possible, reduce the cost of litigation by encouraging cooperation between the parties and attorneys. The court will look at the relative financial circumstances of the parties when accessing attorney fees and costs. Recently, the court decided that both child and spousal support payments should be considered when determining a party’s obligation in paying attorney fees of opposing counsel.
Contact A People’s Choice for more information on how to get attorney fee awards in divorce. We can help you draft and file a motion to get attorney fee awards at the onset of your family law case or in the event of sanctionable behavior. You can speak to one of our experienced staff by calling 800-747-2780.
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