Family Law Specialists*
Steve Fernandez and Mark Karney are Certified Family Law Specialists*
Family Code 271 | Attorneys Fees, Sanctions
Courts presiding over divorce proceedings in California have an interest in making sure that things go smoothly. In some cases, divorces can get ugly. When one spouse has more financial resources than the other, it may be tempting to use those resources to drive up the cost of the divorce.
Filing unnecessary motions, refusing to cooperate, or otherwise lengthening the time in which it takes to finalize a divorce can drive up attorney’s fees and court costs. When one spouse intentionally “frustrates” the settlement process he or she can be sanctioned by the court for those actions. Specifically, a spouse who frustrates the divorce process can be required to pay another spouse’s attorney’s fees and court costs.
Types of Awards for Attorney’s Fees in California Divorces
Award for Need-Based Attorney’s Fees
Spouses involved in a divorce have two options for requesting an award for attorney’s fees in California. First, a spouse can make a request for attorney’s fees based on a demonstrated financial need. Courts have the discretion to order one spouse to pay for the attorney’s fees and divorce-related costs of another spouse when:
- The petitioning spouse demonstrates a need for financial assistance; and
- The non-petitioning spouse has the ability for the petitioning spouse’s legal costs.
When Family Code Section 2030 attorney’s fees are granted, it is merely a way to place both spouses on an equal playing field. The court is ensuring that both spouses in a divorce have access to equal legal representation.
Awarding Attorney’s Fees as Sanctions for Misconduct
Second, a court can order one spouse to pay for the attorney’s fees and divorce-related costs of another spouse if it finds that there has been some abuse of the divorce process. Family Code Section 271, which is discussed below, grants the court discretion to order the payment of attorney’s fees when there has been some intentional “frustration” of a concise and timely resolution to the divorce. There is no requirement for the petitioning spouse to demonstrate a financial need.
Section 271 Sanctions For Delaying or Frustrating a Divorce Settlement
California Family Code Section 271 states that a court has the discretion to make 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.” The statute explicitly states that such an award will be “in the nature of a sanction.”
So, this means a court can impose sanctions if you purposefully:
- Try to extend the length of time that a divorce will take,
- Take steps to avoid settling your divorce, and/or
- Drive up the cost of litigating or defending the divorce.
Section 271 exists to:
- Encourage meaningful discussion between divorcing spouses;
- Accelerate the settlement process.
When one spouse tries to undermine these goals, Section 271 can be used to punish that spouse for their misconduct.
When Section 271 Sanctions Can Be Imposed in a California Divorce
Sanctions can only be imposed if a spouse’s actions actually drive up the financial cost of litigation for another spouse. This is because sanctions are limited to “attorney’s fees and costs on the extent to which the conduct…furthers or frustrates” the divorce settlement. This means that the extent of the sanctions cannot exceed the amount of attorney’s fees and costs generated by the abusive conduct.
There are some limitations to when Section 271 sanctions may be imposed. Courts must consider the financial situation of both spouses when it hears a Section 271 request. In determining if Section 271 sanctions should be imposed, a court must consider “all evidence concerning the parties’ incomes, assets, and liabilities.”
If a court determines that ordering a spouse to pay attorney’s fees would impose “an unreasonable burden,” it may not make such an order. So, even if a spouse frustrates the resolution of a divorce and drives up the cost to litigate or defend the matter, a court cannot impose sanctions if doing so would be unreasonably burdensome. However, in most cases, a spouse will not drive up the cost of litigation if he or she cannot afford to do so. Section 271 allows a spouse to recoup the added costs that another spouse tried to impose.
It is important to note that Section 271 sanctions may only be imposed after a spouse has been notified of the Section 271 request. The spouse that would be sanctions must be given the opportunity to contest the request before the court. The court will consider any evidence that is relevant to determine if sanctions are necessary. A court can enter an order for the payment of attorney’s fees and costs if:
- Sanctions are necessary to punish one spouse for their conduct, and
- The sanctions would not impose an unreasonable financial burden on that spouse.
Speaking With an Experienced California Family Law Attorney
Are you involved in a contested divorce and believe that your spouse is intentionally resisting your efforts to engage in meaningful and productive settlement discussions? Do you think your spouse is trying to increase your divorce-related costs?
If so, you may be entitled to an award that is equal to these additional costs under Family Code Section 271. You do not have to demonstrate a financial need to recover these costs. Rather, you only need to demonstrate that your spouse is intentionally trying to frustrate a timely resolution to the divorce proceedings at hand.
If you have questions about how you can recover attorney’s fees in your divorce do not hesitate to contact Fernandez & Karney. During your free initial consultation we will review your case, explain your rights, and answer any questions you may have.