When a divorce begins, the issue of finances quickly comes to the forefront for almost every couple. In addition to covering the cost of marital bills, each party may wish to hire an attorney to defend his or her best interests. Family law is complicated and has pitfalls that a self-represented spouse can easily fall victim to, making hiring a lawyer early on in the case especially important. Attorneys can be expensive and where there is a disparity in income between the spouses, the financially disadvantaged spouse may find that he or she is without the resources necessary to retain a lawyer. California Family Code §2030 outlines how a financially disadvantaged spouse can request payment of attorney’s fees.
This section of the family code allows a judge to consider a request for need-based attorney’s fees in a divorce, a separation, or any post-judgment proceeding that stems from a divorce. The law states that the judge “shall ensure” that both parties have access to representation. To that end, the judge will make an assessment of the income and financial resources of both parties. It is the responsibility of both parties to be open and honest with the court concerning income from all sources. In addition, where the income of the parties is roughly equivalent, the trial judge may then review the separate property available to both parties. For example, if the husband and wife both have relatively small salaries, but the wife has a large inheritance that she can draw upon to fund her own divorce attorney, the judge may take that large inheritance into account and order the wife to help pay her own attorney’s fees plus the husband’s attorney fees. Understand that a mere disparity in income is not sufficient to warrant an award of fees under this section. The requesting spouse has the burden to prove that without such an award, he or she will not be able to retain an attorney. It is also important to understand that the requesting spouse does not have an automatic right to attorney’s fees—even if he or she is in need.
This request for attorney’s fees can be made right at the beginning of the case. The paying spouse may ask that if an award is made, the paying spouse be permitted to make payment directly to the attorney. This will reduce the risk of the receiving spouse spending all of the funds on something other than legal representation.
The beginning of a divorce can be a financially stressful time, and you need an attorney to help you through the process. We have helped many clients obtain attorney’s fees, and defend requests from the other spouse. Contact us today at 619-800-0384 if you are facing divorce or separation, and we can talk about your case and how to help you going forward.