The payment of attorney’s fees in a divorce proceeding is not always a simple matter. You might think that each party hires a lawyer and dives into the process. California Family Code § 2030, however, requires the family court to ensure that each party has access to legal representation.
In that regard, the court may award attorney’s fees to be paid by one party to the other or her attorney. This happens when an income and needs assessment indicates a disparity in the parties’ access to funds.
An award may be in any amount deemed reasonably necessary to defend or maintain the proceeding during its pendency. The court’s authority to make an award is tempered by the ability of one party to pay the fees of the other. If a party is unrepresented or attempting self-representation, the court may order the other party to pay a reasonable amount to permit the unrepresented party to hire a lawyer before proceedings start.
At all times, the court is required by California Family Code § 2032 to ensure that awards of attorney’s fees are just and reasonable given the relative circumstances of the respective parties. To make such a determination, the court must take into account the need for the award, to the extent that it will allow the parties to adequately present their cases. Awards may be made from any asset of the parties, whether community or separate.
Pursuant to California Family Code § 271, attorney’s fees may also be awarded when one party or her attorney acts in a way that inhibits the progression of the case. The Code states as the policy of the law “to promote settlement of litigation and, where possible, to reduce the cost of litigation by encouraging cooperation between the parties and attorneys.” Such actions may include the refusal to communicate as necessary to advance the case, the filing of frivolous motions, or similar behavior. Awards under this section of the Code are restricted by a party’s ability to pay, and they may only be awarded after notice and opportunity to be heard. Awards of this nature may be paid only from the separate property of the sanctioned party, including her share of community assets.
As you might imagine, the financial positions of the parties to a divorce can be complex and must be accurately portrayed to a court. Judy L. Burger has substantial experience in California family courts, and she also has a business background that allows her to effectively analyze and present financial information. Please contact her at (415) 259-6636 or visit her website to learn more.