When are attorney fees “awarded” in a divorce action?

It’s no secret that hiring an attorney is expensive. Even if you are using a lawyer on a ‘limited scope’ basis to help you only with strategy or to review and revise your forms, it is still a cost that you probably didn’t plan for. So when can you request that your spouse pay your fees? Conversely, will you be on the hook to pay some or all of your ex’s lawyer costs? While there are many ways fee requests come in to play in a divorce action, we’ve limited this article to the two most widely methods for requesting fees. We hope this resource will give you the information you need to plan your divorce strategy (when it comes to fees) by helping you to understand your exposure for paying your spouse’s fees or the likelihood that you would be awarded fees if you requested them from the judge assigned to your case. For example, if you earn 5x more than your spouse or have separate property assets that are substantial, you may try to work out an agreement to contribute some funds to your spouse (so that s/he can also obtain some legal help) to avoid having him/her take you to court and possibly receive an order that awards a whole lot more to your ex. Conversely, if your spouse has offered to pay some of your lawyer costs, it may be a great indication that s/he is willing to work in good faith towards resolution.

Tip: Don’t be overly concerned if your spouse hires a lawyer or works with a team like the one at Hello Divorce. Sometimes having good counsel means that things that would ordinarily become issues because of heightened emotions, ‘go away’ after a good lawyer explains that there are no laws that would provide him/her the relief they want. 

“Need Based” Fees

The issues that need to be resolved in your divorce are property & debt, child custody, child support and spousal support. Additionally, attorney fees need to be considered and resolved in a way that makes sense for you and your spouse. The Family Code allows the court to award fees in the amount that are “reasonably necessary” to properly litigate and/or negotiate a divorce. “Need based” fees can be requested at any point during your divorce. So, for example, if you have been in mediation and have been unable to come to an agreement, you or your spouse can request fees from the court to be able to hire a lawyer to move your case forward. To request fees during a divorce, one spouse must file a Request for Order with the court. The Court will schedule a court hearing for you and your spouse to ‘argue’ your respective positions and then the judge will make a decision. If you can come to an agreement before the hearing, there is no need to attend the court date. If your spouse has filed a Request for Order, you will need to file a response or the court may not consider your objection.

When deciding whether or not to order fees, the judge will look to each of your “need” and “ability to pay.” In other words, do you (or your spouse) have the ability to pay for your representation and that of your spouse? The judge will also look to see whether there is a ‘disparity in access to funds’ to retain an attorney. Even if both spouse’s are ‘well off’, the court can award fees if one spouse has significantly more income, assets and/or liquidity. Since California is a ‘no fault’ divorce state, fees are not awarded for ‘bad’ behavior outside the context of the divorce action. So, for example, if the reason you are obtaining a divorce is because your spouse habitually cheated on you, the court will not consider that as a basis for awarding you fees. However, there are limited circumstances when a spouse will be forced to pay fees for ‘bad’ behavior within the divorce action itself (see below, ‘fees as sanctions’).

What are some of the factors that are relevant to whether fees will be owed by one spouse to the other?

-      Income

-      Assets

-      Expenses

-      Skill required to resolve the issues contained in the divorce (Does a business need to be valued and divided? Do the parties disagree on a parenting schedule? Are there complicated ‘tracing’ issues to prove a separate property interest or reimbursement in a joint asset such as a house?)

-      Attorney fees already incurred and expected to be incurred

-      Consideration of whether the attorney who is already helping with the case used his/her skill and effort in a way that is reasonably devoted toward an efficient resolution of the case

-      Complexity of the case/ issues involved in the divorce

Requesting fees is not easy. The forms are quite procedural and require you to do a lot of work to show there is a disparity in access to funds and you need legal help. That being said, if the court finds that these factors are met, the judge must order that fees be paid.

Fees as “Sanctions”

In most divorces, there is some level of contention. That is to be expected. Divorce is the unwinding of a financial contract and partnership. Add children into the mix and it’s even more challenging. However, if one spouse is “frustrating settlement”, being uncooperative or purposefully delaying the divorce, Family Code section 217 may be employed as means of requesting fees. Note that court would still need to determine whether the ‘bad actor’ has or is likely to have the ability to pay the sanctions.

Some examples of when fees as “sanctions” may be appropriate income (but are not limited to):

1.    Withholding important information about your child’s health or welfare from the other spouse;

2.    Refusing to discuss settlement or answer the emails/calls concerning negotiation from your ex or her/his attorney;

3.    Fueling litigation for no real reason;

4.    Unjustifiably delaying the process;

5.    Refusing to provide financial transparency with your spouse; and

6.    Alienating your child from the other spouse.

As with “need based” fees, either party may request “sanction” fees from the other spouse by filing a “Request for Order” with the court.

Increase your chances of receiving fees by:

1.    Clearly articulating the disparity in income and assets between the two of you.

2.    Playing fair: Make every effort to resolve the issues in your divorce outside of court. If you aren’t being ‘reasonable’ and transparent, the court is less likely to award you fees.

3.    Describing the type of legal help you are receiving and the costs involved: If you are doing your divorce primarily on your own and using a lawyer for only the stuff you really need help with, the court is more likely to find you are ‘reasonable’ and should get money from your ex for fees. If you decided to hire a lawyer for “full representation” explain why you need such ‘skilled’ and ‘comprehensive’ help.

4.    Showing the source of payment for fees or that s/he can restructure his/her finances in such a way as to make payment: For example, does your spouse have an investment accounts with stocks that could easily be sold?

5.    Explaining the amount of fees you’ve spent and/or expecting to spend to get legal help: You need to be able to prove what your legal costs are and what you expect them to be. But caution (!!) if you are attaching invoices or bills, redact sensitive and private information between you and your attorney.  

Limit the likelihood that you’ll have to pay substantial attorney fees to your spouse by:

1.    Agreeing to liquidate a joint account so you both can have funds to pay for an attorney. That way it’s less likely you’ll have to use your separate funds or earnings to pay for your spouse’s attorney.

2.    Playing fair: Make every effort to resolve the issues in your divorce outside of court. If you are being ‘reasonable’ and transparent, the court is less likely to award your spouse fees.

3.    Paying for your own legal help with credit or a loan: If your parents, for example, are gifting you money to pay fees, your income is available to pay your spouse’s fees. However, if you will likely have to pay back a ‘loan’, that is a considerable hardship that will be taken into consideration.

4.    Limiting your own fees: If you are the higher earner and you choose ‘limited’ help through Hello Divorce or “unbundled” legal help, you may be less likely to have to pay fees. Court’s want people to be on a level playing field. If you hire a ‘traditional’ attorney for full representation, chances are the court would want your spouse to have the benefit of one too.

5.    Accurately stating (and proving) your expenses: Say for example you make twice what your spouse earns but you have hefty support to pay and you have student loan payments that are substantial. If your expenses are so high that you have very little net income, this can be a factor in denying attorney fees to your spouse.

Please note that this article is meant for informational purposes only and does not constitute legal advice. Reading this article does not create an attorney-client relationship with Levine Family Law Group or Hello Divorce. This blog is written from the perspective of existing California law and all attempts are made to be accurate and current on all legal developments. However, please do not make decisions that will affect your future based on things you’ve read on our website. Instead, consult with a Certified Family Law Specialist – It doesn’t have to be us, but be sure to seek out sound legal advice that pertains specifically to the facts of your case.