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Need Based Attorney Fee Awards

Updated: Nov 13, 2022

Under the California Family Code and case law interpreting it, a party to a divorce, legal separation, or a parentage action may seek attorney’s fees from the other party based on financial need. However, the disparity in access to funds between the parties and a party’s ability to pay fees must first be established and proven by evidence. Although the overall scope of each matter varies greatly, a need-based attorney’s fees request made in a dissolution action is guided by Family Code Sections 2030, 2031, and 2032, and such a request made in a parentage action or an action brought under the UCCJEA is guided by Family Code Section 7605. These code sections are nearly identical, and the supporting case law may be applied to both matters.

The request can be made for the funds needed to retain an attorney, for attorney’s fees and costs already paid, or for anticipated attorney fees and costs. The purpose of these statutes is to level the playing field and prevent one party from taking control over the situation based on their financial ability to “railroad” the other party.

In a need-based attorney’s fee award, the court must assess the needs of the requesting party relative to the other party’s ability to pay. The greater the inequality between the two parties in their access to funds, the greater the likelihood that the attorney’s fees will be awarded. Current income, assets, and investments are only some of the factors considered by the court. If an award for need-based attorney’s fees is made, the court must also consider the experience of the attorneys, his or her hourly rate, and the extent to which the matter will be litigated in determining the amount to be awarded.

It should be noted that the courts have issued an attorney fee award when it’s been shown that one party’s parent or relative funded their side of the litigation. In one case, Wife’s father regularly paid for her attorney, at that point totaling close to $400,000. Her father characterized those payments as “loans”, however aside from a few small payments Wife had made, the remainder “loaned” to her would be offset against her inheritance. The court found that it may consider recurring monetary gifts as income, and when recurring monetary payments are characterized as a “loan” but are actually an advance against that party’s share of an expected inheritance, it is deemed a gift. The attorney’s fees paid by Wife’s father were considered by the court as Wife’s income and ultimately the court found that it was neither just or equitable to grant Wife’s request for need-based attorney’s fees and costs.

If a party makes a request for fees and has sufficient personal assets to pay their own fees, liquid or not, they are not prohibited from receiving a fee award, but the court must consider the earned income and liquid assets of both parties. Further, a party who received spousal support is not required to utilize their separate property assets in order to fund the litigation.

Each and every request for a need-based attorney’s fee award is different and must be assessed using the facts of your specific case. To discuss the potential of making such a request in your case, call or contact us online to schedule your consultation.

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