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 the course of 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 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 conduct that is sanctionable the court is still required to make a finding of 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 make a contribution 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 much 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, meaning the party who earning an income, the attorney’s fees the court awards under Family Code Section 2030 and 2032, which again are needs-based attorney’s fees, must be reasonably incurred. So therefore from the point of view of the party writing a check if in fact they check is to be written it is to be written for reasonably incurred attorney’s fees. This means the court does not want to give a blank check to an attorney because it would imply that anything and everything the lawyer charges for they will be compensated. That is not the measure of needs-based attorney’s fees.
Therefore the attorney seeking the fees has an obligation via declaration to convince the court and present the court with evidence that the monies they have charged their client were reasonably incurred, that the services they provided advanced the case and in the instance of a request for attorney’s fees that is for prospect of attorney’s fees, 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 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 of attorney’s fees awards throughout the pendency of a family law matter. In our experience typically the court, rather than handing out a blank check to the party asking for attorney’s fees, tends to regulate the award of fees throughout the case. 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 up front 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 that is not a bar the seeking attorney’s fees. That is as long as there is a disparity in financial resources and income the party who has lesser resources can still ask for attorney’s fees. Even if they still have sufficient resources to pay their attorney that’s not a bar to asking for fees.
How do you look at it if you are to party defending an attorney’s fee request?
- Were the fees reasonably incurred?
- Does the party asking for attorney’s fees have some means to contribute to their own fees?
For example, what if the court has already issued an order for spousal support where the same person asked to contribute to 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 order to pay some of their attorney’s fees. So, 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 play 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’s 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 of 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 on 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 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.
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