Divorce is a notoriously long and costly process. Estimates range from $15,000 to $30,000 for an average attorney fee cost of a contested divorce. With the cost of representation running that high, it is no surprise that the issue of which spouse will be responsible for paying attorney’s fees is often front and center in most clients' minds.
Under California law, there are three primary ways to obtain attorney’s fees in a divorce. The first is the most common method, and that is to request fees by bringing a request for order (or motion) for fees by way of Family Code Section 2030. The requesting spouse can argue to the court he or she is the economically disadvantaged spouse and has the “need” for the other spouse to pay some or all of the attorney fees from the divorce. The requesting spouse will be required to demonstrate that the other spouse has the “ability” to pay such an award. The requesting spouse can demonstrate “need” and “ability” by producing not only proof of income for both sides, but also proof of assets available. The request for attorney’s fees under this method is actually a very similar analysis to the analysis the court may do for spousal support. For a detailed explanation of the factors the court considers, click here.
Another way a requesting spouse can obtain attorney’s fee in a divorce is under Family Code Section 271. This statute is a court sanction, and is considered a form of punishment as it provides the requesting spouse attorney's fees in cases where the other spouse has actively attempted to frustrate attempts at settlement, or done all they could to make the divorce process draw out as long as possible. A showing that a spouse has rejected settlement offers is not sufficient under this section. A requesting spouse must show that the other spouse is intentionally frustrating the court process in order to damage the requesting spouse. Section 271 may also be used in conjunction with a party’s violation of ATROS, violation of other court orders, and together with appropriate discovery motions.
If a party brings a request for a domestic violence restraining order during a divorce, and the request for an order of permanent restraint is denied after hearing, the party who wrongfully brought the request for a restraining order may be ordered to pay for the other party’s attorney’s fees in defending against the restraining order. The Family Code describes the request for fees at code Section 6344.
If you have questions about attorney’s fees in your divorce call us today at 619-800-0384 for a consultation. We can review your case and discuss your options