Can You Get Your Attorney Fees Paid By The Other Side?
Consider the following:
Attorney fee award based on need and ability to pay
Family Code 4320 states in part â€œIn a proceeding for dissolution of marriage, nullity of marriage, or legal separation of the parties, and in any proceeding subsequent to entry of a related judgment, the court shall ensure that each party has access to legal representation, including access early in the proceedings, to preserve each partyâ€™s rights by ordering, if necessary based on the income and needs assessments, one party, except a governmental entity, to pay to the other party, or to the other partyâ€™s attorney, whatever amount is reasonably necessary for attorneyâ€™s fees and for the cost of maintaining or defending the proceeding during the pendency of the proceedingâ€. Family Code 2032 directs the court to consider the relative circumstances of the parties using the relevant Family Code 4320 factors that are to be considered when ordering permanent spousal support. Consequently, the court can award attorney fees to a party based on factors other than whether or not they have the ability to pay attorney fees without help.
Attorney fee award based on behavior that makes the divorce unnecessarily more expensive
Family Code 271 provides in part that â€œNotwithstanding any other provision of this code, the court may base an award of attorneyâ€™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 and, where possible, to reduce the cost of litigation by encouraging cooperation between the parties and attorneys. An award of attorneyâ€™s fees and costs pursuant to this section is in the nature of a sanction. In making an award pursuant to this section, the court shall take into consideration all evidence concerning the partiesâ€™ incomes, assets, and liabilities. The court shall not impose a sanction pursuant to this section that imposes an unreasonable financial burden on the party against whom the sanction is imposed.â€ In order to obtain an award under this section, the party requesting an award of attorneyâ€™s fees and costs is not required to demonstrate any financial need for the award. This section can surprise a spouse who is hoping to somehow save the marriage by delaying the submission of required documents, by requiring a payment of sanctions due to the delay that has been caused.