California wants to make sure that both spouses in a divorce have equal access to legal representation. In some cases, spouses will have different abilities to pay for and afford this representation. California Family Code Section 2030 essentially levels the playing field. It allows a court to order one spouse to pay for the the other spouse’s attorney and court fees. Whether you want to have your spouse pay for your attorney fees, or if your spouse is asking you to foot the bill for his or her attorney, it is important to understand when the court can issue this type of order.
Each Spouse Has the Right to Have Equal Access to the Courts
Courts are required to ensure that any party in a divorce, annulment, or separation proceeding have access to legal representation. The courts, under the authority of Family Code Section 2030, can order one spouse to pay “whatever amount is reasonably necessary” to make sure that the other spouse has this access. A court can order the payment of attorney’s fees and related costs when:
- One spouse demonstrates a financial need for assistance with these costs, and
- The spouse that would be required to pay these costs has the ability to pay them.
Determining the Need for an Award of Attorney’s Fees
Attorney and court fees can be awarded if one spouse demonstrates a financial need. The determination will be based on an “income and needs assessment.” Courts will evaluate the financial ability of each spouse to hire legal representation during a divorce or legal separation. This financial assessment will include reviewing each spouse’s:
- Income
- Assets
- Investments
- Dividends
- Inheritances
- Income-producing property
These assessments will be used to determine each spouse’s ability to pay for legal representation. If the court believes that there is a disparity in the ability to pay for the legalities of a divorce, it can order one spouse to pay “whatever amount is reasonably necessary for attorney’s fees and for the cost of maintaining or defending the proceeding.”
Determining the Ability to Pay for Attorney’s Fees
The court can only require the payment of divorce attorney’s fees and costs if the subject of the order can demonstrate the ability to pay. A spouse cannot be ordered to pay for something that he or she cannot reasonably and realistically cover. The court will refer back to the income and needs assessment to determine if a spouse has the ability to pay for these attorney’s fees and court costs.
When a court is determining a spouse’s ability to pay for another spouse’s attorney’s fees, they can take a few different things into consideration. First, a court may consider the spouse’s earning ability, rather than his or her actual income. This means that a spouse who is underemployed or unemployed, but who demonstrates an ability to earn significant income, could be considered to have an ability to pay, even if his or her income does not reflect that.
Here’s an example. Let’s say Spouse A has requested and demonstrated a need for attorney’s fees during a divorce from Spouse B. Spouse B is a licensed psychologist with an earning capacity of $100,000. However, Spouse B currently works part-time at a local animal shelter and has an income of $25,000. The court is free to take Spouse B’s earning capacity into consideration, rather than his actual income. A court could determine that Spouse B has the ability to pay for Spouse A’s legal representation during their divorce based on that earning capacity.
Second, a court may also consider the income and assets of a spouse’s new partner or mate. If spouses divorce and take new partners, the court can consider that partner’s income (or earning potential) when determining if a spouse has the ability to pay divorce-related costs for his or her spouse. So, let’s say Spouse A and Spouse B want to get a divorce. Spouse A demonstrates that he/she cannot afford the same type of representation that Spouse B can. The court will then determine if Spouse B has the ability to pay (or help pay for) Spouse A’s attorney’s fees and related costs. Spouse B recently started a new relationship with a very wealthy doctor. The court can take the doctor’s income into account when deciding if Spouse B has the ability to pay for Spouse A’s divorce-related costs.
Determining an Appropriate Award for Attorney’s Fees and Related Costs
When a court calculates the attorney’s fees that will be granted it will generally limit the award to the amount(s) necessary to handle a standard divorce. Courts will not be inclined to award a spouse attorney’s fees if they try to prolong the divorce, punish the other spouse with unnecessary litigation, or abuse the process of divorce in any other way. With that said, courts generally have broad discretion to award the amount(s) they deem to be appropriate.
In calculating a reasonable award, a court will consider:
- The nature of the litigation
- The complexity of the litigation
- The nature and extent of the content
- The financial circumstances of each spouse
- The level of skill required to litigate or defend the issue
- The professional standing and reputation of the non-petitioning spouse’s attorney
The court is permitted to award any costs it deems to be reasonable to place both spouses on equal ground. These costs can be awarded at any time during the divorce.
A spouse who is ordered to pay attorney’s fees and divorce-related costs can appeal the decision. However, it is very unlikely that an appellate court will overturn a lower court’s decision. There must be some evidence that shows an abuse of discretion. This means that an appeal will only be successful if the appellate court believes that the trial court judge’s ruling was either arbitrary or absurd.
Requesting Attorney’s Fees in a Divorce
Just because one spouse could potentially afford to hire an attorney and pay for divorce-related costs does not mean that he or she cannot request an award under Section 2030. Courts in California have held that the purpose of Section 2030 is to place both spouses on equal footing when they get a divorce. If there is a significant disparity in the ability for both spouses to afford equal access to the same level of legal assistance, the courts can intervene. This means that attorney’s fees can be awarded under Section 2030 even if one spouse could pay for (arguably less powerful) legal representation.
A spouse who wants to request an award for attorney’s fees must file a request for order with the appropriate court. A court will only consider the request if the following forms are completed and submitted:
- Request for Order [Form FL-300], and
- Income and Expense Declaration [Form FL-150].
Failure to provide both of these forms will preclude a spouse from recovering attorney’s fees and divorce-related costs.
Get the Help of an Experienced Family Law Attorney
Are you considering a divorce? Are your hesitations to file based, in part, on a fear of the costs involved? If so, our Los Angeles family law attorneys can help to determine if you may be a good candidate for an award of need-based attorney’s fees. We offer a free consultation, so do not hesitate to contact our office today.