Attorney Fees in the Family Law Context
Attorneys’ fees are another way of saying litigation costs or litigation expenses. It is not just attorney’s fees but the entire financial burden that is incurred to pursue or defend a matter through the various trial courts. Attorney’s fees in family law cases are most typical in respect to child support and spousal support matters. In those instances, and especially when there is a significant disparity in incomes, one of the parties may ask the other to contribute to the litigation expenses. There are many other areas where attorney fees can be sought as well. One parent may seek contribution from the other for expert witness fees as well. Because divorce litigation is never cheap, the parties usually must employ an expert for purposes of tax preparation; identify and value assets; calculate the value of a business; value investments; and possibly develop a child custody or parenting time plan. When experts are required, the actual cost may be borne by only one of the parties, until such time as it is resolved . A party can also seek attorney’s fees against the other who has engaged in conduct that is considered frivolous or inappropriate. For example, in today’s day and age, the party who does not accept the other’s position during negotiations, without an appropriate basis, may be subject to an award of either their own counsel fees, or contribute to the fees of the other party. Sometimes, in the midst of litigation, a party will experience a substantial negative change in their income, such that they can no longer afford to pay counsel. While the courts will note an interim award of fees and possibly enter that into the amount of support, they will not necessarily award attorney fees automatically. The court will look at multiple factors. In fairness, because every household has only limited disposable income, sometimes there is little room for extraneous issues like incurring the liability for a divorce or child support attorney. Nonetheless, it is the law that attorney’s fees can be assessed with some or all of the fees being paid by the other party.
When Are Attorney Fees Awarded?
To understand when attorney fees can be awarded by the Court in the family law context, it is important to note the factors that the Court must look at in making that determination. In a "standard" dissolution case in which there is not a disparity in either the income or assets of the parties and/or the request is not based upon bad faith or a finding that the opposing party is not complying with the Court’s prior orders, then a Court does not have to make a finding under Section 2030 or 2032. Specifically, family law attorneys fees and costs can be awarded pursuant to the difference in the circumstances or the relative income and expenses of the parties. Where a party demonstrates a disparity in the parties’ ability to pay award, "the court may ‘order one party to pay to the other party’s attorney’s fees [and] costs in an amount that is reasonably necessary for attorney’s fees and costs" either pendente lite (during the court proceeding) or post judgment as "speaking to any period of the pendency of the proceedings. . . .’" Where "the issues are particularly complex or novel[]the court must" further examine "whether the award would impose an unreasonable burden on the other party or whether the other party has a claims or defenses that are so novel that they are arguably the subject of interpretation of existing law, or which has not had the benefit of analysis, a court may determine that attorney fees and costs should be paid to a party with no otherwise compelling need on the part of the other party if the award is just under all the circumstances."
Legal Grounds for Awarding Attorney Fees
In determining whether an award of attorney’s fees is proper, courts consider the awarding statute (typically no fault grounds for divorce), the nature of the action, all the circumstances of the parties, and the ability of a spouse to pay attorney’s fees. See, e.g., LeClair v. Casey, 210 W.Va. 24, 552 S.E.2d 96 (2001). The nature of the action is a much broader inquiry. In that regard, courts consider the factors set forth in the Becker v. Becker, 2016 WL 4046677 (W.Va.) (per curium) case where the Court stated: "A court may only award fees to a party if it first determines that (1) the action is proper or, more precisely, not improper; (2) there is a need; and (3) there is the ability to pay. . . . Importantly, we have also stated that the primary consideration in awarding fees is whether or not failing to do so would make equitable distribution of assets or the effectuation of spousal support inequitable. We have held that attorney fees may not be awarded unless failing to award them would be inequitable."
Becker, 2016 WL 4046677 at *2 (citations omitted). Courts are to consider all the circumstances of the parties in determining the reasonableness of any request for attorney’s fees. To that end, factors to be considered are: "the nature of the case; the conditions and relative financial positions of the parties; the amount of fees and costs in fact expended by the party seeking counsel fees; the benefit of the services rendered; the efforts exerted by the parties on their own behalf; the complexity of the facts of the case; the length of the pendency of the action; the amount of time and effort required as compared with the fee charged; the difficulty of the work involved; the skill of counsel and the experience of counsel. . . . The most prudent course is to make specific findings of fact and conclusions of law on these questions." Becker, 2016 WL 4046677 at *2 (citations omitted).
When the trial court considers an award of attorney’s fees, it is important to note that it may not do so "solely on the basis of whether the party requesting an award has prevailed at any point in the proceedings." Becker, 2016 WL 4046677 at *2 (citations omitted). The circuit court is required to review the totality of the circumstances to determine if the conduct of one party was unreasonable or unfair in connection with the litigation of the matter; if one party has unnecessarily increased the fee or expenses then the trial court can make a fee award to a party as an appropriate sanction. Id. This is especially true in litigation involving children. See, e.g., Dyson v. Dyson, 133 W.Va. 824, 828, 63 S.E.2d 581, 584 (1950) (In a custody dispute, it was an abuse of discretion to fail to require the husband to pay a "reasonable attorney’s fee to the wife during her pendency of the prior appeal").
Fee Awards in Different Family Law Matters
Certain family law cases are more subject to attorney fee awards than others. The types of cases involving attorney fees include divorce, child custody, child support, spousal support, domestic violence, child dependency, juvenile delinquency, guardianship, adoptions, consent judgments, discovery matters, and post-judgment matters.
Initially, require all litigants to pay their own attorney fees. However, in many family law cases, a party may request that the other party pay their attorney fees. These requests can be made before trial, at trial, and after trial. The reason for requesting an award of attorney fees is that one party may be financially far superior to the other party and the one with more financial resources is using the litigation process as an unfair tactic to disadvantage the other party. As such, the other party is requesting "money for attorney fees" to level out the playing field. Also, when the courts make findings that one party, for example, made motions which had no merit or provided false declarations, the Court orders that party to pay the attorney fees as a "sanction." The Court must determine that the award of attorney fees is proper under the Family Code.
How to Seek Attorney Fees
The process for requesting attorney fees in a family law case is fairly straightforward. First, the request must be made by way of a noticed motion, meaning that the opposite party must be given at least 16 court days’ notice of the hearing (i.e., if there is no other appearing party in the case) or at least 25 court days’ notice if served by mail. However, the California Supreme Court ruled that family courts do not have the authority to award attorney fees to one party as sanctions against another party under Family Code section 271 (b). Sanctions are different from an award of attorney fees and hold a much greater potential for abuse. So attorneys and family law litigants alike have to be careful what they ask for. Otherwise, opposing counsel can view it as an invitation to assert the full potential for complaints.
Next, the request for an award of attorney fees has to be made at the earliest practical opportunity. However, these motions to secure attorney fees are often filed as part of a request for temporary spousal support or sometimes never at all. Because of the timing issue, parties should not simply wait for the next hearing on the calendar to request attorney fees, unless there is a very good reason. The first opportunity it becomes "practical" should be when the party seeking the fees obtains competent representation. If that is not possible, then the party may have to forego seeking the award until the next hearing. However, just because it is practical doesn’t mean it will be granted.
There are procedural and substantive requirements that must be considered when making a request for attorney fees. First, the request must include a statement of supporting reasons. The statement must include facts, supported by competent evidence, showing why the basis for the request should prevail over the opposition. Failure to include these statements of reasons will result in its rejection. This is also true if the request is mailed outside of California.
Second , a schedule of hourly rates and hours spent on the case must be provided. In the event that the court does grant the fees, this will assist the family law attorney in drafting the order awarding the fees to their respective client. However, if the court denies the request for attorney fees, then the attorney may be required to write off the time spent on that request. In some cases, the parties agree to a rate and then do not put the rates into the order appointing a referee or special master to rule on the award of attorney fees rather than trying the matter before the judge. In other cases, the parties may have already stipulated to the rates and did not need to go through the practice of providing the statement of reasons and the schedule of hourly rates and hours worked.
The other requirement involves the recent changes in the law with regard to discovery. The parties must meet and confer on the basis for the request for fees before filing the motion. Additionally, the attorney rate and hours spent must be included in the meet and confer process. Further, according to the terms of Family Code section 2034 (c), the party who is responsible for paying the fees must respond to this information within 30 days before filing a motion to have the fees reduced. Notwithstanding, the family law statutes and rules relating to discovery have bootstrapping requirements. In other words, parties cannot take advantage of the motion to reduce attorney fees to avoid responding to discovery months before. UNLESS they object that the request is untimely, waiver, or the information is subject to settlement or mediation confidentiality, the family law clients must attempt to obtain the schedule of the hourly rates and hours worked for the attorney who billed them without invoking the motion as a way to do so. Otherwise, the other side can use this as a collateral matter to seek a sanction as a result.
How to Oppose a Request for Attorney Fees
Historically, attorney’s fees were paid at the end of the case when there was a settlement or the case came to an end. However, with the proliferation of various petitions that come into play early in a case – application for temporary relief, pendente lite support and temporary restraining orders, the awarding of attorney’s fees to level the litigation playing field has become more and more common. Even in dissolutions without children, the court is permitted to award counsel fees on an interim basis as well.
While the Court has the discretion to make such awards, it does not mean that there is no room to object to such an application or petition for counsel fees. For example, in defending against an application seeking a prospective award of fees on an interim basis, one strategy may be to argue that the matter is not ripe for resolution. Another strategy may be to challenge the reasonableness of the amount of work performed or the nature of the work performed. However, care must be taken to ensure that you are not adding to the litigation by taking a hard line.
In fact, in many cases, fee requests are resolved without any further application to the court. Litigants may even agree to apportion the fee based upon work performed. Additionally, many times the parties are able to resolve fee disputes with respect to both interim and final fees by way of consent order. Many times, when the parties come to an agreement on the fee issues, it is in the form of a consent order, which makes the agreement binding. Thus, when you agree, leave the Judge out of the case. It will save you time and money.
The Effect of Fees On Family Law Outcomes
As with many rules, there are exceptions, and the area of attorney fee awards is no different — but by and large, the expectation continues to be that each party will pay his or her own attorney fees in a family law case. The awarding of attorney fees can, however, have a significant impact on the outcome of a family law case. For example, the entire cost of a divorce or post-judgment matter can be born by one party. Thus, the result is that in a divorce case, the support received by the lower-earning spouse may trump the equitable distribution of assets (i.e., the party with less money gets more money on a support basis, but a lower share of assets), while in a post-judgment matter, a party may defeat a request for a decrease in alimony by virtue of having (or claiming to have) substantial legal fees. Thus, the awarding of the attorneys’ fees is a critical factor in a family law case. Moreover, this consideration is not lost on the upper echelon, so to speak, of practitioners and litigants. Retaining three and four figure per hour attorneys seems to be common, and with the kind of money being spent, one can only wonder how many divorces and post-divorce matters could have been settled with far lower fee exposure with stunning results. In some situations and under for very certain specific circumstances, an award of attorneys’ fees is appropriate, but often times, as a matter of course, there is a simple multiplication of attorneys’ fees by factors of 4-10 times (and we are not exaggerating). While we litigators know that with the possible exception of support, there are usually two sides to every story which are equally credible, putting credible litigants on the stand and allowing them to tell their stories exposes those litigants (i.e., most people) to significant exposure when it comes to their legal fees in family law matters. How much the fear of significant legal fees perhaps leads parties to more amicably resolve their differences is something for another discussion.
Later Cases and Trends
In Cao v. Cao (2017) 196 Cal. Rptr. 3d 423, the Court of Appeal explained: While former spouses must "unaffect[ed] in the postdivorce world," the courts have recognized that there is a "continued duty ‘to support the supported spouse according to the former couple’s circumstances during marriage.’ [Citation.] This duty often requires one spouse to pay a reasonable amount toward attorney fees incurred by the other. (Theodor v. Superior Court, supra, 181 Cal.App.4th at p. 1509.) In re Marriage of Thompson (2010) 180 Cal.Rptr.3d 762, the court stated: ‘Family Code section 2030, subdivision (a)(1) permits an award of attorneys’ fees to a supported party "[i]n a proceeding for dissolution of marriage or legal separation … in which a party has an ability to pay fees to enable the other to carry on or defend the proceedings." In other words, fees may be awarded in a divorce if one spouse cannot afford to pay counsel while the other spouse can. Before an award may be made, the trial court must find, from the evidence presented, that (1) there is a need for attorney fees, and (2) the other spouse possesses the ability to pay. (Id., at p. 766.)’ In In re Marriage of Smith (2005) 129 Cal.Rptr.2d 271, the defendant explained: ‘We will not disturb the trial court’s decision to award attorney’s fees unless we conclude that the court abused its discretion. (In re Marriage of Druener & Wetherbee (2002) 101 Cal.App.4th 412, 415, citation omitted.) ‘The law requires that the trial court consider the income and needs of both parties before awarding attorney fees. (In re Marriage of Keech (1999) 75 Cal.App.4th 860, 865, citation omitted.) "Need" is defined as "the necessity to retain the services of an attorney to preserve one’s rights under the law." (In re Marriage of Rosenfeld (2002) 105 Cal.App.4th 808, 818, see also Family Code section 2030(b).) In determining need, the trial court must evaluate the circumstances that the parties will face if an award of attorney fees is denied, including each party’s ability to maintain his or her own household and provide for his or her personal needs. (In re Marriage of Rosenfeld, supra, at pp . 818-819; In re Marriage of Stoker (2008) 162 Cal.App.4th 103, 114.) "The question is whether the party seeking fees has an inability to pay for legal representation, while the other spouse has a greater ability to pay." (In re Marriage of Rosenfeld, supra, at p. 818.) Fees are not conditioned on financial hardship alone, but rather there is a presumption in favor of awarding fees to a requesting spouse where ‘need’ is demonstrated. (Ibid. at p. 819, citing In re Marriage of Schiller (1976) 64 Cal.App.3d 259, 262-263.) If feasible, the trial court should avoid delays in reaching a ruling on a motion for attorney’s fees and should encourage the supported spouse to commence divorce proceedings before the marital assets are diminished by the unsupported spouse. (In re Marriage of Jones (1984) 153 Cal.App.3d 538, 545, disapproved on other grrounds in In re Marriage of Farr (1994) 28 Cal.App.4th 1367.) ‘Costs are also awarded to promote settlement rather than prolonged litigation. Requests for fees under Family Code section 2030 are most often made under circumstances where the money to pay an attorney can more easily be found in marital assets than by income. (In re Marriage of Keech [supra, 75 Cal.App.4th at p. 865].) "[S]imilar to spousal support, our courts are motivated to promote parity between the parties so they can equally afford to sustain their respective litigation efforts." (In re Marriage of Carlson (2010) 182 Cal.App.4th 104, 119.) Generally, attorney fee awards in family law are vested with the sound discretion of the trial court and will not be disturbed on appeal unless there is a clear abuse. (In re Marriage of Keech, supra, 75 Cal.App.4th at p. 865; Pavon v. Jonsson (2012) 176 Cal.App.4th 108, 118.) A trial court does not abuse its discretion if it applies the correct legal standard and reaches a reasonable result, considering the relevant facts. (Id. at p. 865; In re Marriage of Alter (2001) 94 Cal.App.4th 1300, 1305.) In particular, we will not allow an appellate reversal based upon a trial court’s exercise of discretion unless the trial court has exceeded the bounds of reasonallity. (In re Marriage of Spanier (2010) 190 Cal.App.4th 128, 138-139.)