There are numerous circumstances under which the Court an order one side to pay some, or all, of the attorney fees and costs incurred by a party in a Family Law proceeding. The two most common circumstances are: (1) An award of Attorney Fees based on the relative financial circumstances of the parties and (2) as a Sanction for bad faith conduct undertaken by one of the parties.
Relative Circumstances of the Parties; AKA “Need Based” Attorney Fees
The Court is permitted under Family Code Section 2030 to order one party “to pay to the other party, or to the other party’s attorney, whatever amount is reasonably necessary for attorney’s fees and for the costs of maintaining or defending the proceeding during the pendency of the proceeding”. I assessing if, and how much, to order a party to pay, the Court will look to the relative financial needs of the parties. Similar statues are in effect for other non-marital, family law proceedings, like paternity actions.
If the other party to your case earns substantially more than you do, you may be entitled to assistance in funding your litigation through an attorney fee award. If you earn more than the other party to your case, it is important to understand your exposure to an award of attorney fees for the other side in developing a strategy for your case. In either situation, it is important to consult with an experienced Family Law Attorney to discuss your rights or obligations with respect to this important issue.
Sanctions for Bad Faith Conduct
Family Code Section 271 permits the Court to base an attorney fee award on the extent to which a party or party’s attorney furthers or frustrates the policy of the law to promote settlement and to reduce the cost of litigation by encouraging cooperation between the parties and attorneys. If the Court determines that one side, or that side’s attorney, is pursuing the case for improper reasons, or driving up the costs of litigation through obstreperous conduct for no legitimate reason, the Court has the ability to issue Family Code Section 271 Sanctions to punish that side for the offending conduct.
Other Types of Attorney Fee Awards
The Court has the ability to also issue an award of attorney fees in the following circumstances:
- Attorney fees incurred in enforcing a right of reimbursement for payment of a debt incurred by the spouse (FC 916(b));
- Attorney fees incurred in an action for breach of fiduciary duty by a spouse (FC 1101(g));
- Attorney fees during a period of continuance for reconciliation (FC 2334);
- Attorney fees in a proceeding to recover monetary sanctions for a false accusation of child abuse or neglect (FC 3027.1);
- Attorney fees in a proceeding to recover compensation for a party’s failure to assume his or her caretaking responsibility or thwarting the other parent’s visitation or custody rights (FC 3028);
- Appointment of counsel to represent a child in a custody or visitation proceeding (FC 3114, 3150-5153,3184);
- Attorney fees when a custody or visitation proceeding is commenced in a clearly inappropriate forum (FC 3407);
- Attorney fees if jurisdiction is declined by reason of conduct of a parent who wrongfully removed children (FC 3408);
- Attorney fees for the enforcement of a sister-state custody order (FC 3416);
- Attorney fees in a proceeding to modify or terminate a child support order (FC 3652);
- Attorney fees for agency enforcement of child, spousal, or parent’s right to support (FC 4002, 4003, 4403);
- Attorney fees and costs in a proceeding under the Uniform Interstate Family Support Act (FC 5700.313);
- Attorney fees in a proceeding under the Domestic Violence Prevention Act (FC 6344, 6386);
- Contract for attorney fees for services in litigation for a minor (FC 6602);
- Attorney fees and costs under the Uniform Parentage Act (FC 7640);
Related Areas of Practice
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