Divorce & Family Law Attorney

Family Law Blog

Divorce & Family Law Blog by Attorney Jamie Elmer of Berkeley, California


Summary:  Attorney's fees in Family Law proceedings include fees payable based on the need of the requesting party and the other party's ability to pay, without the need to show any misconduct of the other party, as well as attorney fees as sanctions based on the conduct of the party and/or their attorney.  In addition, attorney's fees provisions applicable to non-Family Law civil litigation also apply in Family Law cases.

Attorney Fee Award based on the relative financial resources of the parties.

 One party may be ordered to pay, in whole or in part, the attorney's fees of the other party if the party has the ability to pay, and the requesting party demonstrates a need for it.  In evaluating the ability to pay and the need, the court considers the relative circumstances of each party, including, not just their relative incomes, but also any assets, abilities, investments and income producing properties.  [California Family Law Code section 2300].

The court may even take into consideration money received from a parent to cover living expenses, or as gifts, or the fact that parents or other relatives are financing the litigation.

In awarding attorney's fees the court seeks to ensure that each party can adequately present his or her case, and to assure that each party is more or less on an equal playing field in terms of litigation resources.

Thus, even if a party requesting an attorney's fee award has the resources to pay his or her own attorney's fees and costs, a fee award might still be appropriate, considering the relative circumstances of each person party. [E.g., where one party has an extraordinary amount of financial resources relative to the other party.]  Thus, it might even be reasonable under the circumstances for the higher income party to receive attorney's fees if the other party has significantly more assets.

The requested fees must be "reasonable." Thus, the requesting party must usually demonstrate what the anticipated litigation issues are, including their relative complexity [or lack thereof], and the need for any extraordinary expenses such as expert's fees.  The court will not order attorney's fees for what it considers to be excessive or unnecessary litigation.

A fee request can be made at any time before trial, and as a practical matter, usually accompanies a request for order regarding support or custody or some other pretrial issue, early in the case.

Attorney Fee Award for violating the Duty to Cooperate which is imposed to promote policy of encouraging settlement and reducing costs in Family Law cases.

An attorney Fee award payable to a party may be imposed as a sanction based on the conduct of the other party [or his or her attorney], that frustrates the statutory policy of encouraging cooperation to promote settlement and reduce costs of Family Law litigation. [California Family Law Code section 271] The sanction is applied only to a party, and not to his or her attorney. [even if based on the conduct of the attorney; but attorney may be liable under a different statutory provision (see below)].

Family Law litigation is therefore unlike other litigation, in that the parties are obligated to cooperate and negotiate in good faith to reach a settlement, as opposed to the often warlike prosecution of other civil litigation.

Thus, actions such as making unwarranted motions, making unreasonable settlement offers, failure to comply with financial disclosure requirements, failure to honor informal agreements with respect to discovery and other procedural matters, failing to cooperate in routine procedural matters, or any other conduct that unnecessarily increases the cost of litigation and/or delays the resolution of the case, may warrant monetary sanctions payable to the innocent party [or paid directly to the party's attorney].

An attorney fee award based on such conduct does not require the innocent/requesting party to demonstrate a financial need for the attorney's fees, and the amount of the award need not be related to the actual attorney's fees incurred because of the conduct.  It is meant as a deterrent to the misuse of the legal system.

Ability to pay is relevant only to the extent that the award must not cause an undue financial burden on the paying party.

Attorney Fee award based on the conduct of a party and/or attorney for bad faith conduct.

The court may order a party or the party's attorney (or both) to pay the reasonable expenses, including attorney's fees incurred by the other party as a result of bad faith actions or tactics that are frivolous or solely intended to cause unnecessary delay. [California Code of Civil Procedure section 128.5].

"Frivolous" includes an action that is "totally and completely without merit or for the sole purpose of harassing an opposing party."

This penalty is imposed in addition to any other liability imposed that may cover the same actions. [See above & below].

Miscellaneous provisions for Attorney's Fee awards in California Family Law proceedings

  • Attorney's fees as sanctions against the attorney and/or party for filing documents with the court that contain false or unsupported allegations, or denials that are not warranted by the evidence, or filing documents that are being presented for an improper purpose, such as to harass or cause unnecessary delay or needlessly increase the cost of litigation. [California Code of Civil Procedure section 128.7]  [But need to give the offending party an opportunity to correct or withdraw the offending pleading/document before entitled to fees].
  • Attorney's fees as sanctions based on provisions of the Discovery Act with regard to enforcing, or misuse of, discovery procedures. [California Code of Civil Procedure section 2023 et seq.]. [Discovery includes depositions, subpoenas, interrogatories, and requests for production of documents]
  • Attorney's fees and costs can be awarded to compel a party to produce required financial disclosures if they had not been provided. [California Family Law Code section 2107]
  • Attorney's Fees for breach of fiduciary duty, including failing to disclose community property, or for transferring community property without adequate consideration. [California Family Law Code sections 271(b), 1101]
  • Attorney's fees as sanctions for making false abuse or neglect allegations. [California Family Law Code section 3027.1]
  • Attorney's fees and costs awards under the uniform interstate family support act. [California Family Law Code section 4900 et seq.]
  • The court has the authority to order one or both the parties to pay attorney/s appointed to represent the minor child/ren. [California Family Law Code section 3153; Marriage of Perry (1998) 61 Cal.App.4th 295]
  • Attorney's fees can be awarded to the prevailing party in a Domestic Violence Restraining Order action. [California Family Law Code section 6344(a)]