Family Law and Attorneys Fees

In California, laws are in place to ensure that, to the extent practical in actions involving family law, "each party has access to legal representation to preserve each party's rights...." This is accomplished when one party is ordered to pay attorney's fees and costs for another party. Such orders are based upon "the respective incomes and needs of the parties" and "any factors affecting the parties' respective abilities to pay." California Family Code section 2030 applies to proceedings for "dissolution of marriage, nullity of marriage, or legal separation of the parties...." Similar laws are in place with regard to proceedings "to establish physical or legal custody of a child or a visitation order," pursuant to California Family Code section 7605. The express purpose of these statutes is to level the playing field for the spouses and/or parents with children from non-marital relationships.

In order to obtain an order awarding attorneys fees, a party must file an Order to Show Cause requesting such an order in the pending case. A court hearing on the matter is required and the requesting party must file a proper motion with all requisite documents and information to potentially succeed. The legal fees and costs that a party must incur in an effort to obtain such an order is not inexpensive. Unfortunately, it is foolish for an attorney to take on a case without being paid by the client and in reliance upon obtaining such an attorneys fees order.

I made that mistake in or about 1995, when I was retained by a woman to represent her in a paternity matter. She was receiving welfare and thus did not have the means with which to pay for my legal services. However, she told me that the child's father was a physician and earned a good living. I believed her and took the case. I prepared and filed all of the necessary documents and retained a process server to serve the documents on the alleged father, who did not file any responsive documents before the hearing on the matter. However, he appeared at the hearing and testified on his own behalf. Contrary to my client's representations, the father was not a physician. Rather, he was also receiving welfare. The Court made orders regarding custody, visitation and child support. However, the Court was unable to make an attorneys fees order because the father was in no better position than my client to pay my attorneys fees. My client knew that I was never going to obtain an attorneys fees order against the father. She fed me false information in order to obtain free legal representation in her case. Since then, I have refused to take on a case unless the client was able to pay my retainer from savings, loans, credit cards or the assistance of friends and family.

Furthermore, if an unrepresented party seeks an order awarding attorney fees so that they have the ability to retain an attorney, such an award, if any, will be very limited because the Court has no guarantee that the party will actually use those funds to retain counsel.

Moreover, " a motion for attorney fees and costs in a dissolution action is addressed to the sound discretion of the trial court, and in the absence of a clear showing of abuse, its determination will not be disturbed on appeal. The discretion invoked is that of the trial court, not the reviewing court, and the trial court's order will be overturned only if, considering all the evidence viewed most favorably in support of its order, no judge could reasonably make the order made." This same level of discretion applies in proceedings to establish physical or legal custody of a child or a visitation order in non-marital proceedings. In other words, "the court has considerable latitude in fashioning or denying" such an order. If Courts grant an order awarding attorneys fees, they frequently order that the amount be paid in installments over a period of time. It is also not uncommon for a Court to reserve jurisdiction over the issue of attorneys fees and costs, thereby preventing the party seeking such an order from receiving the fees in order to have equal access to legal representation.

"While no particular language is required in an order awarding attorneys fees under sections 2030 and 2032, the record (including, but not limited to, the order itself), must reflect an actual exercise of discretion and a consideration of the statutory factors in the exercise of that discretion." If a party feels that the Court abused its discretion in making its attorneys fees order, bear in mind that the cost of appealing such a decision also costs money. In fact, appellate attorneys typically charge much higher rates than attorneys in other fields of law. A person can expect to pay $700.00 per hour when retaining an appellate attorney. The party with the financial resources may be able to afford such an expense. However, if the party seeking to appeal the order is the one without the financial resources, how can they afford to appeal the decision?

California is not the only state in this country with ineffective legislation in this regard. On August 13, 2010, Governor Paterson of New York signed into law recently passed legislation "that would bring significant reform to New York's outdated divorce laws." One such change creates "a presumption that a less monied spouse in a divorce case is entitled to payment of attorneys' fees. Under current law, a party that cannot afford to secure representation in a divorce proceeding must make an application for fees at the end of the process, which can force a poor individual to proceed without a lawyer, or to surrender on important issues due to lack of means. These bills received strong support from women's groups, advocates for victims of domestic violence and legal aid organizations. 'Finally, New York has brought its divorce laws into the twenty-first century,' Governor Paterson said. 'These bills fix a broken process that produced extended and contentious litigation, poisoned feelings between the parties and harmed the interests of those persons -- too often women -- who did not have sufficient financial wherewithal to protect their legal rights. I commend the sponsors on providing a real and effective legislative solution to a problem that has for too long bedeviled ordinary New Yorkers.'"

Unfortunately, the problems in effectively leveling the playing field for the parties through orders awarding attorneys fees are not the only glitch in the legal system. As I wrote in my article entitled, "Pit Bull" Attorneys and Family Law", "'Pit bull attorneys' are not concerned with resolving a case in a fair and equitable manner, despite the fact that the family law court is considered a court of equity, or fairness. Instead, these attorneys take advantage of the flaws and imperfections in the legal system to make the case for the other side so costly that they either cannot or will not continue to fight for that to which they are otherwise legally entitled. Such attorneys are focused on 'winning," no matter what the cost, irrespective of right and wrong, and in total disregard of equity."

For example, the spouse with more limited financial resources might serve the other spouse with "Form Interrogatories," which are pre-printed and pre-approved by the California Judicial Counsel and are used to obtain information relating to income, debt, community and separate property, alleged agreements, and credit and reimbursement issues. Since the questions in Form Interrogatories are pre-approved, a party cannot generally object to them. Nevertheless, it is not uncommon for a party to object to one or more questions asked in the Form Interrogatories. The asking party must then send the other party a "meet and confer letter," which demonstrates that an effort was made to resolve the dispute outside of court. If the answer given is evasive, incomplete, or the objection is without merit or too general, the asking spouse may then file a motion "for an order compelling a further response." The court shall then "impose a monetary sanction...against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a further response to interrogatories, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust."

In actuality, the courts almost never impose a sanction equal or even close to the actual attorneys fees and costs incurred in filing such a motion. As a result, "pit bull attorneys" and their clients act in uncooperative ways even though they know that a court will very likely sanction them for such conduct. However, since the amount of the sanction will not equal the cost incurred by the other side in bringing the motion, they in effect cause the other party to spend down their limited resources until they outspend them and then go for the kill. The legal system and the Judges encourage this type of behavior by not adequately sanctioning such behavior. However, Judges also know that if they give more severe sanctions, lawyers will disqualify them from presiding over their cases on the basis that the judge is "prejudiced against the party (or his or her attorney) or the interest of the party (or his or her attorney) so that affiant cannot or believes that he or she cannot have a fair and impartial trial or hearing before the judge." As more and more attorneys disqualify such Judges, their cases are reassigned to the remaining Judges. Problems then develop for those Judge's who have a significantly reduced case load. This is what is call a " catch-22 situation."

It seems that California has a broken process that produces extended and contentious litigation, poisons feelings between the parties and harms the interests of those persons -- too often women -- who do not have sufficient financial wherewithal to protect their legal rights. Maybe it is time for California to bring its divorce laws into the twenty-first century.