A common question that we receive in our practice, which is devoted exclusively to divorce and child custody cases, is “Do I have to pay my spouse’s divorce lawyer?”
The answer is the classic lawyer response. It depends.
Need-Based Attorney Fees Under California Family Code § 2030
Under California Family Code § 2030, the court shall ensure in divorce and child custody cases that each party has access to legal representation to preserve the parties’ rights in their divorce and child custody cases. Under California Family Code § 2030, the court can order one party to pay to the other party whatever amount is reasonably necessary for attorney’s fees and for the cost of maintaining or defending the case. In short, the court has the discretion to order one party to pay the other party’s attorney fees. This is typically called a “need-based fee award.”
Typically, a need-based fee award will be ordered if one party has more income or assets than the other party that makes it so one party can pay for both parties attorney fees, and the other party cannot afford to pay attorney fees, the court can make a need-based fee award.
A link to the language of California Family Code § 2030.
Sanction/Conduct Based Fees Under California Family Code § 271
Under California Family Code § 271, a party can be ordered to pay to the other party attorney fees if their conduct in the divorce or child custody case frustrates the policy of the law to promote settlement of litigation and reduce the cost of litigation. This essentially means that if one party takes unreasonable positions in the case thereby raising the cost of attorney fees to the other party, the court can order attorney fees to be paid by the “bad actor.”
A link to the language of California Family Code § 271.
Takeaway
Both these attorney fee statutes are vague enough to argue for, and against, attorney fee awards in your case. Each case must be carefully analyzed and prepared to successfully seek, or defend against, attorney fee awards. There are many cases that support attorney fees being ordered and attorney fees being denied. It is important to hire experienced counsel to analyze your facts and applicable law to make the strongest arguments.