One important aspect for any party involved in a family law case to consider is attorney fees and costs. Often, paying attorney’s fees can be a source of anxiety and strain, especially during a time of financial strain. However, not having an attorney to ensure that your rights are protected may result in significant financial and legal consequences. Accordingly, finding an attorney with experience and the ability to meet your needs is critical. Therefore, the question often becomes, “How do I pay my attorney?”
Below are some key points to keep in mind when considering where you may find funds available to pay attorney’s fees and costs:
- You may use funds from your checking, savings, brokerage or other financial accounts.
- You may use a credit card.
- You may borrow money from friends and/or family.
- In some circumstances, the Court may order the opposing party to pay your reasonable attorney’s fees and costs.
It is important to be able to account for any funds used post-separation for attorney’s fees, because the other party may request and is entitled to this information.
Family Code §2030
Under Family Code §2030, the Court has discretion to order one party to pay another party’s reasonable attorney’s fees and costs. Family Code §2030 applies to cases of dissolution of marriage, nullity of marriage, or legal separation of the parties.
The principal objective behind Family Code §2030 is to ensure that both parties have equal access to legal representation. Before granting this award, the Court will look at the parties’ disparity in incomes as well as the parties’ abilities and needs for attorneys’ fees. Therefore, if you are not the primary income earner or you do not have equal access to money to hire an attorney, you may be entitled to have your attorney’s fees and costs paid by the opposing party. If you are the primary income earner, or have more access to money to hire an attorney, you may be obligated to pay the opposing party’s reasonable attorney’s fees and costs under Family Code §2030.
The Court has the authority to make the attorney’s fees award at any time during the pendency of the action, often referred to as pendente lite. Oftentimes, the party seeking attorney’s fees and costs will make the fee request early in the proceedings in order to retain and pay an attorney. Furthermore, an attorney’s fee award is not necessarily a one-time order. The Court has authority under Family Code §2030(c) to augment or modify their award throughout the pendency of the action, depending on the circumstances of the case.
Family Code §271
A common theme and goal throughout family law cases is the promotion of settlement. The California Legislature as well as California Courts are determined to support and provide incentives for the parties and their attorneys to settle cases when appropriate. To do this, the Court has authority to order sanctions against a party and award attorney’s fees and costs to the opposing party when uncooperative and inappropriate conduct ensues. Specifically, Family Code §271 states, “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 costs of litigation by encouraging cooperation between the parties and attorneys.” Hence, where a party or a party’s attorney engages in behavior that is uncooperative or inappropriate, the Court may order that party to pay the opposing party’s attorney’s fees and costs. A party subject to these monetary sanctions must not be placed under an unreasonable financial burden.
Family Code §271 does not seek to dissuade a party or party’s attorney from advocating or fighting for his/her interests. Rather this rule was codified to ensure that parties’ litigation tactics does not cross the lines of professionalism and cooperation.
California Rules of Court 5.14
As of January 1, 2013, California Rule of Court (CRC) 5.14 is effective. Similar to Family Code §271, under CRC 5.14 a party may be entitled to attorney’s fees and costs as a result of the opposing party’s misconduct.
However, CRC 5.14 is broader in who may be sanctioned and who is entitled to compensation. By motion of the court or a party to the case, sanctions may be imposed against “the attorney, law firm, party, witness, or other persons” that have engaged in specific conduct in violation of the rules. Additionally, the person that committed the violation may be liable for monetary sanctions to not only the other party but the Court as well. However, like with Family Code §271, a party subject to these monetary sanctions must not be placed under an unreasonable financial burden.
California Family Code §1101
Each spouse in a marriage owes a fiduciary duty to the other spouse. Under Family Code §1101, a spouse has a fiduciary duty claim against the other spouse, when the breaching spouse impairs- fails to disclose, hides, encumbers, transfers, or disposes of the asset(s) without the permission of the other spouse- their undivided one-half interest in community property.
When the breach of fiduciary duty does not rise to the level of oppression, fraud, or malice, one of the prescribed remedies in a breach of fiduciary action is the mandatory award of attorney’s fees and costs to the non-breaching spouse. The Court must award the aggrieved spouse his/her attorney’s fees and costs associated with litigating the breach of fiduciary duty action. However, the Court must determine that the breaching party has the ability to pay the attorney’s fees and costs aware per Family Code §271.
When the breach does not rise to the level of fraud, oppression, or malice, the Court may award attorney’s fees and costs to the non-breaching party; it is not mandatory. Once again, an attorney’s fees and costs award is subject to the breaching party’s ability to pay.
Breach of Fiduciary Duty claims can be serious, often exposing parties in a Family Law case to serious liability, including paying the aggrieved spouse’s attorney’s fees and costs.
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