Who Pays the Attorney Fees in My Divorce?
A frequently asked question at the start of a divorce action is whether one spouse will have to pay some or all of the other spouse’s attorney fees. Until your lawyer has specific information, the most common answer is, “it depends”.
In order to assess the “it depends” factor, we start with Family Code section 2030, often referred to as the “need and ability” statute. The purpose of this Code section is to “ensure that each party has access to legal representation.” Frequently, the spouse that earned less income during the marriage is concerned that he or she will be “out-litigated” by the spouse with a higher income or access to more funds. Family Code section 2030 is intended to create a “level playing field” so that one spouse cannot take advantage of the other simply because one has more money than the other spouse. The law works to achieve “parity” or equity when there is a disparity or difference in income so the parties can retain independent lawyers to represent them through the divorce proceeding.
In order to establish the need and ability, the court will assess each of the parties’ incomes, assets, needs and ability to pay attorney fees. A “reasonably necessary” amount of fees and costs will be ordered if the court finds one party needs funds to retain legal representation and the other has the ability to pay his/her own fees plus the other spouse’s legal fees. Obtaining an attorney fee award is not always easy, and often highly contested.
A formal request must be filed with the court using specific forms along with supporting and factual declarations from the spouse seeking attorney fees and the lawyer setting out outlining anticipated (or already performed) work necessary to bring the case to a conclusion. At the court hearing each party may present their positions for or against the fee award. The court will consider each party’s position, and if it finds that a “need” and “ability” exist, attorney fees and costs will be ordered.