The family law judge’s hammer (which many aren’t hesitant to use) is in Fam C §271(a):
…the court may base an award of attorney’s fees and costs on the extent to which the conduct of each party or attorney furthers or frustrates 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.
For example, an overreaching settlement demand may be the basis of §271 sanctions. In Marriage of Abrams (2003) 105 CA4th 979, 992, a settlement offer that was so onerous that it wouldn’t seriously be considered by the opposing party was held not designed to promote settlement, but to antagonize or to gain unfair advantage.
Here’s how to request such an award:
- Provide the party against whom the award is sought, notice and an opportunity to be heard. Section 271(b) doesn’t specify the exact form of notice, but from case law we know that it must state the specific grounds and conduct for which the fees are sought, and must be directed to the specific person against whom they’re sought. Marriage of Davenport (2011) 194 CA4th 1507, 1529.
- Request fees when uncooperative conduct arises. Although the court in Marriage of Quay (1993) 18 CA4th 961, 970 stated that sanction should only be assessed at the end of the lawsuit, when the extent and severity of the improper conduct can be judged, another court stated that a trial court must be able to apply sanctions during the course of the litigation when uncooperative conduct arises to encourage better behavior as the litigation progresses. Marriage of Feldman (2007) 153 CA4th 1470. The safest practice may be to seek sanctions when the need arises, and if the court disagrees with that practice, then try again at the end. In any event, keep an ongoing record of conduct by the opposing party or attorney that might support an award of fees and costs under §271.
Even if the court agrees with your request, there are limits on the judge. In making an award, the court must consider all evidence on the parties’ incomes, assets, and abilities and may not order a sanction under Fam C §271 that imposes an unreasonable financial burden on the party against whom it’s imposed.
For more on the types of attorney fees awards available in family law matters, and the forms you’ll need to make a request, turn to CEB’s Practice Under the California Family Code: Dissolution, Legal Separation, Nullity, chap 9. This title is part of CEB’s OnLAW Family Law Library.
Other CEBblog™ posts you may find useful:
- A View from the Family Law Bench, Part 1
- In the Divorce Wars, Who Pays the Attorney Fees?
- 5 Ways to Deal with the Family Home in Divorce
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