What are attorney’s fees and why are they important?
Attorney’s fees are the costs and fees that you pay your lawyer for your representation. It is often the biggest expense in a family law case. If you cannot afford an attorney, it may affect the outcome of the case. Luckily, there are laws in place to help provide parties equal access to legal representation when going through a divorce.
Who has to pay attorney’s fees?
Under California Family Code section 2030, the court can order one spouse to pay “whatever amount is reasonably necessary” for the other spouse to acquire an attorney. Generally, this occurs when two things are true:
- One spouse demonstrates financial need for assistance with these costs, and
- The other spouse has the ability to pay fees for both sides.
How do I get an award of attorney’s fees and what does a court consider?
In order to get attorney’s fees from the other side, you’ll have to petition the court for them. The court will then assess each party’s income and assets to determine their ability to pay for legal representation, among other factors. If the court sees that the parties have an unequal ability to afford representation, the court may order one spouse to pay for the other’s attorney’s fees. However, the order will only be made if the spouse with more resources has the ability to pay.
To determine whether someone has the ability to pay, the court will consider their income, expenses, and assets and debts. In circumstances where someone may be underemployed or unemployed, but demonstrates an ability to earn a significant income, the court may consider their earning ability, rather than their actual income. For example, if someone is an independent contractor but has conveniently been out of work during the divorce process, the court can consider his or her earning ability instead of actual income, when determining if they can pay the fee award. If one spouse has remarried or is receiving any financial assistance from a new partner, the court may also consider the income and assets of that new partner when deciding whether someone can afford to pay the other side’s attorney’s fees.
How easy is it to get attorney’s fees in a divorce?
Attorney’s fees are never guaranteed, and the amount of an award can vary significantly. Therefore, it’s important not to rely on them too much when considering the expense of hiring an attorney. However, if there is a significant difference in financial resources between the two sides, a skilled attorney should be able to secure at least some award of fees for the spouse with more limited financial resources.
If I get attorney’s fees ordered to me, do I have to pay the money back later?
No. The large majority of the time, an award of attorney’s fees does not act as a loan. It is yours to use to pay your attorney and help reduce the cost of your litigation, with some exceptions. An attorney’s fees award will also have no direct effect on any potential spousal or child support payments. It is a completely independent sum for an independent purpose.
What if I don’t have the money to pay the other side’s attorney’s fees?
If you don’t have the money to pay the other side’s attorney’s fees, you will have to demonstrate that to the court by showing your income, expenses, and assets and debts. The more you can prove that you can’t afford it, the less likely you will have to pay it. You can also try to work with the other side to see if you can make payments towards their fees instead of paying it all at once, or if there is some other arrangement that both of you can agree upon.
Need more information?
Call the Law Office of Benjamin Kanani today.