Archive for April, 2013

California Divorce Blog–Attorney Fee Awards in California Courts

April 25, 2013

The California Family Code provides for attorney fee awards in family law matters. I am often asked whether the opposing party can be made to pay for attorney fees and costs. The answer to this question is “it depends” on the facts in your case.  I will discuss the two most commonly used sections to award attorney fees.

There are two discrete statutory sources of authority for fees and costs awards in dissolution, legal separation and nullity actions: First, there are Need Based Attorney Fees.  Pursuant to California Family Code Sections 2030 and 2032, the court is empowered to order the payment of fees and costs as between the parties, based on their “relative circumstances” (i.e., respective incomes and needs and abilities to pay) in order to ensure a parity of legal representation in the action.  Alternatively, or in addition to a need-based award (above), California Family Code Section 271 provides the court with a powerful weapon to curb obstreperous conduct in family law proceedings by assessing fees and costs as a sanction

Whether need-based or as a sanction, Family Code fees and costs may be awarded by the judgment and/or at any time during pendency of the action or for postjudgment appellate, modification or enforcement proceedings. (See Family Code Section 2030; Marriage of Green (1992) 6 CA4th 584, 593, 7 CR2d 872, 876-877; Bidnav. Rosen (1993) 19 CA4th 27, 38, 23 CR2d 251, 258; See Marriage of Askmo (2000) 85 CA4th 1032, 1038-1039, 102 CR2d 662, 666—pendente lite need-based attorney fees awardable to W while her default was in effect and pending H’s appeal from order granting W relief from default judgment.

Indeed, in circumstances demonstrating a disparity in the parties’ “access” to and ability to pay for legal representation, a need-based fees and costs award to “level the playing field” early in the proceedings is virtually mandatory. (See California Family Code Section 2030(a)(1) &(2); Marriage of Tharp (2010) 188 CA4th 1295, 1315-1316, 116 CR3d 375, 391-392—given disparity in parties’ ability to pay for legal representation, error to deny W requested attorney fees award until conclusion of case]

A Family Code Section 2030(a) “related thereto” fees and costs award is need-based. However, courts entertaining Family Code proceedings are also empowered to assess fees and costs as a sanction against a party whose uncooperative conduct frustrates the policy of the law to promote settlement and reduce litigation costs (Family Code Section 271).In many cases, Section 271 sanctions will be an effective alternative to a Section 2030 “related thereto” need-based award. Indeed, Family Code Section 271 may render it unnecessary to resort to Section 2030(a)  to recover fees and costs for a “related” action:

“Under the factual circumstances of the instant case, the findings of the trial court would clearly support an award of attorney fees and costs as a sanction under Family Code Section 271 alone, since [Husband] violated the public policy in family law cases to promote settlement and reduce the costs of litigation by encouraging cooperation between attorneys and parties.” (See Marriage of Green (1992) 6 CA4th 584, 592, 7 CR2d 872, 876—award against H for W’s fees and costs incurred in defending against nonmarital actions upheld both under Section 2030 “related thereto” provision and pursuant to Section 271 sanction authority; see also Neal v. Super.Ct. (Neal) (2001) 90 CA4th 22, 26-27, 108 CR2d 262, 265-266—fees award against H (for dragging W “through this unnecessary excursion in the civil court”) under authority of both Askew (“related thereto” fees award based on civil action “duplicative of the family law action,”) and Family Code Section 271; Burkle v. Burkle (2006) 144 CA4th 387, 393, 50 CR3d 436, 440 (sanctions)]

Depending on the facts and egregiousness of the conduct in question, seeking a Section 271 sanction award may be tactically advantageous because it could yield agreater recovery than one based upon need and ability to pay. (See Marriage of Green, supra, 6 CA4th at 592, 7 CR2d at 876).

Nonetheless, “cautious counsel” moving in a family law action for an award of fees and costs incurred in a “related” proceeding may choose to proceed under both Section 2030 and Section 271 … “since it may be difficult to predict in advance which section the court will rely upon if it grants the motion.” [Marriage of Green, supra]
Please note, Attorney Fees are not awardable to Self Represented Litigants.  
Amount of need-based award: In determining the amount of a Section 2030 need-based fees and costs award, trial courts must apply the same statutory standards governing the threshold decisionwhether to make the award—i.e., the court must consider what is “just and reasonable” under the parties’ “relative circumstances” and must base its determination on the parties’ respective incomes and needs, and “any factors affecting” their respective abilities. (Family Code Sections 2030(a)(2), 2032(a))
As applied to the specific facts of each case, the primary focus is on what is “reasonably necessary” to adequately maintain or defend the proceeding. (Family Code Sections 2030(a)(1), 2032(b); Marriage of Marsden (1982) 130 CA3d 426, 446, 181 CR 910, 921; see Marriage of Keech (1999) 75 CA4th 860, 870, 89 CR2d 525, 532—abuse of discretion to order H to pay W’s attorney fees without making any inquiry into reasonableness of the fees; Marriage of Dick (1993) 15 CA4th 144, 167, 18 CR2d 743, 756.

Relevant factors: Relative need and ability to pay are not the exclusive considerations in fixing the amount of a “just and reasonable” fee award. In determining a “reasonable” fee award, trial courts should also take into account such matters as the:

• nature and complexity of the litigation;
• amount involved;
• skill required and employed in handling the litigation;
• attention given;
• success of counsel’s efforts;
• the respective attorneys’ professional standing and reputation;
• intricacies and importance of the litigation;
• labor and necessity for skilled legal training and ability in trying the case;
• litigation costs already incurred and expected to be incurred through conclusion of the case; and
• time consumed. (Marriage of Keech, supra, 75 CA4th at 870, 89 CR2d at 531-532; Marriage of Braud (1996) 45 CA4th 797, 827, 53 CR2d 179, 197, fn. 30; see Marriage of O’Connor (1997) 59 CA4th 877, 884, 69 CR2d 480, 484).

At conclusion of client’s case in chief: Request for a need-based attorney fees and costs award should be made upon conclusion of the client’s case in chief and before counsel rests. Supporting evidence will usually be taken at that point and the matter decided along with all other issues in the case.

Statement of decision: It behooves counsel to request a statement of decision on the underlying evidence used to compute a reasonable fees and/or costs award. Failure to request a statement of decision on the issue waives the right to the relevant computations; and an award of reasonable amounts will be upheld on appeal under the doctrine of implied findings (see Chs. 15 & 16). (Marriage of Ananeh-Firempong (1990) 219 CA3d 272, 280, 268 CR 83, 87; Marriage of McQuoid (1991) 9 CA4th 1353 1361, 12 CR2d 737 740).

It is important that you consult with your attorney regarding the possibility of attorney fee awards (either in your favor or against you) in your case. You may be ordered to pay attorney fees either because of your financial circumstances or because of your sanctionable conduct.

If you have questions regarding possible attorney fee awards in your Family Law case please contact Attorney Keith F. Simpson today at (310) 297-9090 or visit his website at to set an appointment to discuss your legal matter.