Who Pays For Attorney Fees In A Divorce?

It has now been almost five decades since Ronald Reagan, when he was the governor of California, signed into law the Family Law Act of 1969, making California the nation’s first state to allow no-fault divorce. Before 1969, in every state, one spouse essentially had to “sue” the other for divorce and establish “grounds” for the divorce. California divorce attorneys know that no-fault divorce has changed all of that and more, but what it has not eliminated is the contention and acrimony that accompanies many if not most divorce proceedings in our state.

If you are divorcing or expecting to divorce in California, in most cases, a judge will not order your spouse to pay your attorney fees. No law in California or any other state requires one partner to pay the other’s attorney fees. California judges will – in very rare cases – issue an order to one spouse to pay the other’s attorney fees, but only – in most cases – if a family’s finances are so one-sided that the divorce process would otherwise be entirely unfair. If you intend to make your spouse pay your attorney fees, it begins by having your divorce attorney file a motion with the court.

In many marriages, one spouse may earn very little income, especially when that spouse stays home to care for children. If partners in this situation choose to divorce, the income-earning spouse may even remove the other’s name from all of the couple’s financial accounts, leaving that partner with no resources whatsoever and making it difficult even to hire a divorce attorney. In such circumstances, the disadvantaged spouse can ask the court to order the other spouse to pay for attorney’s fees and legal costs. A judge will then review both partners’ finances and decide what amount, if any, the income-earning partner should pay.

CAN ASSETS BE DIVIDED AT THE START OF A DIVORCE?

In every California divorce, the marital assets and debts are divided. These assets include bank accounts, money market accounts, IRAs, and stock accounts. In some cases, at the beginning of the divorce process, the court will order one spouse to pay an advance on the division of assets so that the advance can be used for legal fees. In such a case, the paying spouse is not actually paying the other spouse’s attorney fees; the marital assets will inevitably be divided at some point in the divorce, whether or not one spouse needs cash immediately for attorney fees.

A more affluent spouse can complicate a divorce by attempting to deceive the court through hiding assets or failing to provide financial documents. That spouse may further complicate matters with frivolous motions, false allegations against the partner, or by failing to negotiate in good faith. In such cases, that spouse may be ordered to pay attorney fees for the other spouse since it was not the other spouse’s fault that the process became unnecessarily complicated and costly.

The basic legal principle governing divorce law in California is that the “playing field should be reasonably level” in divorce litigation. Both partners should have and are entitled to a relatively equal chance to air the issues and make their cases. A spouse with no access to funds cannot compete in a divorce with a spouse who is affluent, so one of the court’s roles is to ensure that both spouses have sufficient funding. When one spouse cannot afford a divorce lawyer and the other can, that is when the court may order the affluent spouse to pay the other’s attorney fees.

WHAT FINANCIAL INFORMATION WILL THE COURT CONSIDER?

Of course, the court can order an award for attorney’s fees only if the spouse who is ordered to pay the award has the capacity to pay it. The court will consider almost all sources of income, including earnings, community property, and investments. In determining a spouse’s ability to pay, the court may also consider the income of a spouse’s new mate or partner if they share expenses. The court is also authorized to consider a spouse’s “earning ability” as opposed to his or her actual earned income.

No divorcing spouse in the state of California should expect a “free ride” by having attorney fees paid. However, if one spouse is trying to work out disputes in good faith and the other complicates the negotiations or refuses to negotiate, a California court may award the spouse acting in good faith a substantial portion of his or her attorney fees. Courts sometimes make this award to encourage the unyielding spouse to try harder and to stop taking the court’s time. When requesting attorney fees for the other spouse’s unreasonable behavior, a spouse is not required to demonstrate need.

Many persons divorcing in our state do not take full advantage of their rights or may not even be aware of them. California law – specifically California Family Code Sections 2030 through 2032 – covers attorney fee awards in California divorces. Anyone who divorces in California must be represented by an experienced Fresno divorce attorney who thoroughly understands the law and who can fight aggressively for your rights. Don’t try to represent yourself. The standardized documents and fill-in-the-blank forms that you download from the internet cannot give you any certainty that your divorce is legal or that your settlement is enforceable.

WHAT IF A REQUEST FOR ATTORNEY FEES IS UNREASONABLE?

So far this discussion has assumed that a spouse asking for attorney fees is asking in good faith. But what if the request is not made in good faith? If you are divorcing in California and your spouse is unreasonably asking the court to order you to pay attorney fees, you will also need to be represented by an experienced divorce lawyer who can explain to the court why the request is unreasonable and why granting the request would be unfair to you.

Divorces are never easy. Emotions often run quite high. When children are involved or when significant assets and properties are in dispute, it is imperative to stay focused on settling the issues. Under California’s no-fault divorce laws, if one spouse wants to divorce, nothing has to be proven, and there is no way the other spouse can stop the divorce. In any divorce procedure, your future is truly at stake, so you must see to it that your legal rights and your long-term best interests are fully protected.