A Quick Overview
Finding and retaining a lawyer can be a very expensive process. Moshtael
Family Law is cost-conscious and strives to offer affordable, fair rates
to all of our clients. In many cases, there may not be access to sufficient
funds and assets during a divorce. In these cases, a spouse may be entitled
to a contribution from their spouse to cover the cost of legal fees. Our
Orange County divorce attorneys can help you obtain fees to provide you
with fair and qualified representation throughout your divorce.
Understanding Attorney’s Fees
The issue of attorney’s fees in a family law case can generally be
divided primarily into two sections. The first section would be what we
call needs-based attorney’s fees. These are fees that are awarded
based on the need of the party seeking the fees and the ability to pay
of the party paying. Specifically, Family Code sections 2030 and 2032
address these issues. Now the other section or manner in which attorney’s
fees are awarded in a family law case is under Family Code section 271.
These are what we call sanctions and sanctions can be awarded for conduct
by an attorney, or a litigant, that is not conducive to settlement or
that prolongs the case or increases the cost of litigation unnecessarily.
When it comes down to the issue of sanctions even assuming that there is
sanctionable conduct the court is still required to make a finding of
the ability to pay under sanctions. Therefore we have to keep that in
mind. The most common type of attorney fee then is needs-based attorney’s fees.
Needs-Based Attorney’s Fees
Typically this would be the stay-at-home parent who has raised the children
or supported the family and the other party has been going to work. That
is a typical scenario where the less advantaged spouse or litigant is
going to go to court and ask the court to have the other litigant contributes
to their attorney’s fees. This would be either from the income of
the other litigant or from their assets. This is typically done at the
outset of divorce or family law matter order divorce meaning almost immediately
after a petition is filed for legal separation or divorce the party that
is in need of attorney’s fees will file a request for order with
the court and ask for a hearing to determine the appropriate amount of
attorney’s fees as a contribution that the other party should pay.
The concept of needs-based attorney’s fees is to level the playing
field. The idea is it would not be fair and appropriate for the party
that has greater resources to be able to retain a competent, aggressive
lawyer whereas the person that doesn’t have as many resources would
be limited to perhaps either no attorney or in the alternative some lower
level of legal assistance.
On the other hand, if viewed from the point of the party paying, or who
is earning an income, the needs-based attorney’s fees the court
awards under Family Code Section 2030 and 2032, must be reasonably incurred.
This means the court does not want to the paying party to give a blank
check to an attorney because it would imply that anything and everything
the lawyer charges for will be compensated.
The attorney seeking the fees has an obligation via declaration to present
the court with evidence that the monies they have charged their client
were reasonably incurred. Along with proof that the services they provided
advanced the case and in the instance of a request for attorney’s
fees including fees that have not been earned but that are anticipated
to be earned. Then the attorney needs to furnish the court with a detailed
explanation of all the anticipated fees, how much time it would take,
what the activity would be to give the court some evidence on which to
base an attorney fee award.
Also under needs-based attorney’s fees, it is not uncommon that there
are multiple attorney’s fees awards throughout the pendency of a
family law matter. In our experience typically the court tends to regulate
the award of fees throughout the case rather than handing out a blank
check to the party asking for attorney’s fees. That is the court
is more likely to grant a smaller fee award and encourage the attorney
to keep coming back to augment the attorney fee award and to ask for more
when the money runs out as opposed to getting a gigantic attorney fee
order upfront that will supposedly carry the attorney from beginning to
the end of the case. Therefore it is not uncommon for attorneys to go
back and continue asking for contributions to attorney’s fees.
How to Look at this if You Are the Party Paying
You start by determining whether the fees were reasonably incurred because
if they were not you should not pay. You also need to look at the financial
resources of the party seeking the fees. The law does say that even if
a party seeking attorney’s fees has resources to pay their own attorney’s
fees the party who has lesser resources can still ask for attorney’s
fees as long as there is a disparity in financial resources and income.
How do you look at it if you are to the party defending an attorney’s
- Were the fees reasonably incurred?
- Does the party asking for attorney’s fees have some means to contribute
to their fees?
For example, what if the court has already issued an order for
spousal support where the same person asked to contribute to the attorney’s fees
is already paying a sizeable amount of spousal support every month. Perhaps
the argument can be made that party seeking the fees can use a portion
of their spousal support to pay some of their attorney’s fees. 1)
Were they reasonably incurred? 2) Does the party asking for fees have
any resources from which they can pay attorney’s fees? 3) Has the
party who is asking for the fees engaged in any sanctionable conduct?
Regarding Family Law 271 Sanctions
Interestingly enough you can offset a needs-based attorney fee award with
a 271 Family Law Sanctions award meaning that the party who is being asked
to write a check for attorney’s fees contributions can look at the
behavior of the party asking for attorney’s fees and point out to
the court that perhaps that party has acted unreasonably, they have extended
the litigation. If the court award was for a $50,000 fee award, depending
on the behavior of the party asking for attorney fees, the court may offset
that award with some figure in the form of sanctions against the party
asking for attorney’s fees.
The Effects of Attorney’s Fees on the Length of a Family Law Matter
Again from the perspective of the person who’s paying the attorney’s
fees, this brings up the point of how does an attorney fee award or sanction
plays a role in encouraging people to settle. Because if you’re
having the right a check not once but repeatedly to pay for your spouse’s
attorney, to pay for litigation, is it possible that at some point in
time you are going to look at this litigation as a financial transaction
and determine whether the amount of fees you are paying for your attorney
and the other party outweighs the cost of the litigation. If that is the
case then an attorney fee award from the perspective of a person paying
for it can be a motivator to get the case settled. On the other hand,
the argument can be made continuous attorney fee awards that are party
asking for attorney’s fees has the opposite effect, meaning it has
the effect of extending litigation because the attorney representing the
party seeking fees is continuously being given resources to continue litigating
the matter rather than settling the matter.
Attorney’s fee awards can then certainly have an impact on either
prolonging a case or bringing it to completion. At some in every case,
no matter how wealthy the litigants are, one or both parties have an epiphany
that being the amount of financial and emotional resources that they have
placed in their divorce. That epiphany we hope is sufficient to cause
people to become reasonable the sit-down work out their differences and
settle their case because otherwise, assuming they have children, the
way one can look at it this entire marital estate is one bucket and this
bucket has finite resources. No matter how much money you have, whether
the bucket is 10 gallons or 1 gallon if you continue going and you expend
resources in this bucket you are going to have significantly less than
you start with.
The question becomes is it best to retain some of that bucket for your
children? Yes. Is it wise to spend some of that bucket on litigation or
your case? Yes, because you need to be informed and you need to be educated
about the decision you are making in your divorce.
A Balanced Approach
It is not that it is wrong to retain an attorney or pay attorney’s
fees, it just that it needs to be a balanced approach. At the end of the
day, litigants need to understand that putting emotions aside they have
finite resources which either would be available to them or their children,
and there comes a point in time in every case where either the matter
must go to trial to be complete or they must settle it. So one way or
another while the issue of attorney’s fees is important and it’s
relevant the family law litigation it can have a huge role on whether
people settle, whether to continue to litigate and frankly whether they
will file bankruptcy.
To be fair, sometimes litigants don’t have a choice meaning there
is only so much that somebody can bend or be reasonable. In the event
that you have one litigant who is reasonable or logical and the other
one happens to be the opposite it may just be that the litigants will
be forced to stay in the case, let the force the case run its course and
ultimately either settle or go to trial.
Call Moshtael Family Law at or
contact us online to schedule a free consultation with a member of our legal team to explore
your legal rights and options today.