Attorney's Fees Awards in Family Law Cases
The following information is not meant to be legal advice. It offers alternatives,
tips and resources for those with no means to hire an attorney.
Clients often come to us, eager to ask the court to order their fees paid
by the other side. These clients are often armed with a long list of reasons
why they feel their fees should be reimbursed by the opposing party. In a
child custody/support case, unlike many other types of legal actions, the court has the discretion
to award attorney's fees and costs to one party or the other. “Discretion” is the key word here. The court is not necessarily required or “supposed to” award attorney's fees. Rather, the judge has the
authority, given primarily by two statutes discussed below, to award part, all,
or none of your, or the other party’s, attorney's fees and costs
depending on the facts of your case, if a request for attorney's fees
Family Code Section 271, or Section 2030, will be the statute providing the court
with the authority to award attorney's fees in a Family Law case.
Family Code Section 271 awards attorney's fees to a party whose fees have been
driven up by unreasonable and uncooperative behavior of the other side,
which has frustrated reasonable settlement efforts. The court is still
required to consider the parties’ incomes, assets, and liabilities
in making this award, but the central focus of 271 sanctions is to reimburse
a party who has paid far higher fees than they otherwise should have because
of litigious conduct of the opposing party.
Family Code Section 2030 fee awards are different. They are based upon the judicial
policy that both parties be ensured equal access to legal representation.
To that end, courts have the authority to order one party to pay a reasonable
amount of attorney's fees on behalf of the other party.
Family Code Section 2030 fee awards are based on one party having a “need”, or being unable to pay their fees, due to unemployment, lower
earning capacity, etc., and the other party having an ability to pay,
due to superior earnings, control over significant assets, etc. If neither
party has the ability to pay a portion of the other’s fees,
Family Code Section 2030 probably will not help you.
If neither of these statutes fit your situation, there may be other authority
you can use to request attorney's fees and costs. Furthermore, if
you are able to negotiate directly with the opposing party, perhaps you
can reach an agreement where they help you with your attorney's fees.
In any event, keep in mind that awards of attorney's fees and costs
are not guaranteed. When a court does see fit to award attorney's
fees, it can help significantly with the costs of litigation.