attorney fees and family law

ATTORNEY FEES PAID BY HIGHER EARNING SPOUSE TO LOWER EARNING SPOUSE

 

 

IN GENERAL

 

In family law matters cncerning attorney fees, California's public policy is to equalize financial disparities between parties so that each party has the ability to secure and retain appropri­ate legal counsel, to level the playing field so to speak. Thus, the lower income spouse usually asks the court for a financial contribution from the higher income spouse specifically to offset attorney fees paid and anticipated to be paid in conducting the balance of the case.

 

These sections of the Family Code establish the legal authority for the court to order such a contribution.

 

In a [dissolution proceeding] ... the court shall ensure that each party has access to legal representa­tion to preserve each party's rights by ordering, if necessary based on the income and needs assessments, one party ... to pay to the other party ... whatever amount is reasonably necessary for attorney fees and for the cost of maintaining or defending the proceed­ing during the pendency of the proceeding. Fam.C. §2030(a)(1)

 

and

 

Whether one party shall be ordered to pay attorney fees and costs for another party, and what amount shall be paid, shall be determined based upon, (A) the respective incomes and needs of the parties, and (B) any factors affecting the respective abilities to pay... Fam.C. §2032(a)(2)

 

and, from the most widely used lawyer's practice book:

 

"...a family law [temporary attorney's] fees and costs award serves the fundamental purpose of equal­iz­ing the parties' litigation resources" Rutter; Cali­fornia Practice Guide: Family Law; §5:181 in reference to Fam.C.§2030(a)(1)

 

and, from a well-known case on the issue:

 

[Such public policy] is best accomplished by provid­ing at the outset of litigation ... a parity between spous­es in their abili­ty to obtain effective legal representation. Marriage of Keech (1999) 75 CA4th 860, 868

 

FACTORS THE COURT CONSIDERS

 

The Family Code standard for determining the need and rea­sonableness of any amount awarded is established as follows:

 

... the court shall take into consideration the need for the award to enable each party, to the extent practical, to have suffi­cient finan­cial resources to pres­ent the party's case adequately, taking into consideration, to the extent relevant, the circumstances of the respective parties de­scribed in [Fam.C.] §4320; Fam.C. §2032(b)

 

Family Code section 4320 sets forth 14 subsections lettered (a) through (n) for the court's consideration in ordering, where applicable, the determination of an award of attorney fees. Some of these factors are:

 

1. Age of the parties - §4320(h)

 

2. Employability of the parties - §4320(g)

 

3. Parties ability to pay and their assets - §4320(c)(e)

 

FINANCIAL RESOURCES NOT BAR TO CONTRIBUTION

 

Sometimes, both parties are well off but one is better off than the other. This is not a bar to one spouse receiving a contribution as the law rests on one spouse's greater ability to pay and specifically states that, just because the less well-off spouse could afford to pay that fact, of itself, does not preclude an award. See below:

 

The fact that the party re­questing an award of attorney fees and costs has resourc­es from which the party could pay the party's own attorney's fees and costs is not itself a bar to an order that the other party pay part or all of the fees and costs request­ed. Fam.C. §2032(b).

 

A leading case quite on point summa­rizes thus:

 

Husband has $2 million in assets ... wife has at least $40 million. [Wife contends] that since husband had the [cash] available from his own assets, he failed to make a threshold showing of need for the award. [The Court of Appeals] reject wife's definition of "need" finding that the [present Fam.C.§2032(b)] which permits an award of attorney fees and costs to a party who "has the resources from which he or she could pay his or her own attorney fees and costs" means exactly what it says. Accordingly, we affirm. IRMO O'Connor (1997) 59 Cal.App.4th 877, 879

 

CONCLUSION

 

In family law, as opposed to other civil litigation, it is California's policy that the deeper pockets should not prevail solely because of greater financial resources. Accordingly, to offset and equalize financial imbalance, one spouse is usually ordered to pay for the other spouse's attorney fees. In fact, the high earner pays to defeat his own case. In California, that is called "equity".