In the Divorce Wars, Who Pays the Attorney Fees?

Divorce has many costs, not the least of which are the attorney fees incurred by each party. But it’s not always the incurring party who has to foot his or her attorney’s bills.

Under Fam C §2030, a court may order any party, except a governmental entity, to pay the amount reasonably necessary for attorney fees and costs in a marital dissolution case.  A party without the financial ability to hire an attorney can ask the court to order the other party to pay a reasonable amount to allow the unrepresented party to retain counsel. Fam C §7605. This rule is intended to ensure equal access to the courts.

In ordering a party to foot the bill for the other party’s attorney fees, the court focuses on the following:

  • The relative circumstances of the parties,
  • The conduct of a party or an attorney that frustrates the policy of the law to promote settlement and encourage cooperation, and
  • Any bad faith actions or tactics.

Any time before trial, either party may seek to have the court determine the equitable allocation of attorney fees between the parties by filing a noticed motion. Fam C §2032(d).

That the party requesting the award has the resources to pay his or her own attorney fees and costs is not in itself a bar to ordering the other party to pay part or all of the fees and costs requested. In Marriage of O’Connor (1997) 59 CA4th 877, 884, 69 CR2d 480, the court ordered the wife to pay the husband’s attorney fees despite the husband’s net worth of $2 million, because the wife’s ability to pursue the litigation was much higher given her net worth of $40 million.

Instead of leaving it to a judge to decide, the parties may reach their own agreement as to who will be paying the attorney fees. Inexplicably, that’s how a wife was ordered to pay the attorney fees incurred by the husband who was convicted of raping her. As reported in San Diego News, the husband requested an award for fees he had incurred, but before the court heard that request, the parties reached an agreement by stipulation, which the judge then approved. Based solely on this agreement, the judge required the wife to pay $47,000 for her former husband’s lawyer.

This horrifying result may never again occur if new legislation can extend the current exemption, which prohibits any payment award from an injured spouse  to someone convicted of attempted murder, to those convicted of other violent felonies, including rape.

For complete coverage of attorney fee issues in family law cases, turn to CEB’s Practice Under the California Family Code: Dissolution, Legal Separation, Nullity, chap 9. For sample attorney fee agreement forms, check out CEB’s California Marital Settlement and Other Family Law Agreements,  chap 14.

© The Regents of the University of California, 2012. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

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