Your divorce case can be both emotionally draining and can end up being very expensive. In some cases, spouses will argue over every issue, including big issues such as spousal support and custody as well smaller items like who gets the family pet. Usually, you will pay attorney’s fees for just about everything having to do with your divorce.
If your attorney bills you hourly, your lawyer will bill you for every minute they spend on your case. Every item such as meetings, court appearances, phone calls, and emails, will all cost you money. If that happens, the attorney’s fees you will have to pay can escalate rather quickly.
Getting your spouse to pay your legal bills
Many times, one spouse will try to get their soon-to-be-ex to pay their legal fees in their divorce. Absent such an agreement, in California, there are basically two methods to get your spouse to pay for your lawyer: go to court or have them agree to pay your fees.
Getting your spouse to voluntarily pay for your lawyer during the course of your case is probably going to be very difficult to do. You can read a summary of a recent California case about an agreement between spouses to have a husband pay a his wife’s legal fees. But if you want to go to court to force your spouse to pay for your fees, that demand will depend on the particular facts of your case.
Need based attorney fee award
In California, the state policy about attorney fee awards is that if one spouse can afford to pay for both lawyers while the other spouse would have to proceed without a lawyer without a contribution then the judge should consider an order for fees to be both necessary and fair in order to “level the legal playing field” between the spouses.
Under California Family Code Section 2030, a court may order a need based fee award. That law will allow a judge to require your spouse to pay the amount reasonably necessary for attorney fees and costs in your divorce case. In short, if you are without the financial ability to hire an attorney, you can ask the court to order your spouse to pay a reasonable amount to allow you to hire a lawyer.
The purpose of Section 2030 is to “ensure that each party has access to legal representation to preserve each party’s rights by ordering, if necessary based upon the income and needs assessments, one party,…to pay to the other party, or to the other party’s attorney, whatever amount is reasonably necessary for attorney’s fees and for the cost of maintaining or defending the proceeding….” Courts will examine the “respective incomes and needs of the parties” and “any factors affecting the parties’ respective abilities to pay.” The court must also consider disparities between the parties’ access to resources.” If the findings demonstrate disparity in access and ability to pay, the court shall make an order awarding attorney’s fees and costs.” In summary, Family Code Section 2030 creates a level playing field so that one spouse cannot have a legal advantage of the other simply because of an income disparity.
Therefore, the court may require your spouse to be cooperative and to determine if they have been cooperative, the court will inquire into four areas to decide whether you are entitled to receive attorney’s fees. Those four areas are:
- The ability of each party to pay attorney fees to the other party or to their own attorney;
- The relative financial needs of each party;
- Relative disparity of access to funds; and
- Conduct by either party that justifies awarding attorney fees to sanction bad behavior.
Your judge will look at the relative financial circumstances of you and your spouse, which includes examining the assets each of you owns as well as your respective incomes. Although you may have enough money to pay for an attorney, you are not necessarily required to exhaust all of your resources if circumstances like the relative net worth or incomes of each of you justify a contribution from your spouse.
Bad conduct fee award
There’s another way to try to get your spouse to pay your legal bills, but it’s much more limited. This method for getting fees from your spouse is not based on your need. Instead, it’s based upon the conduct of your spouse and their lawyer.
The State of California has long recognized that it is a goal of the state to promote settlement of cases. To do this, the court can order attorney’s fees and sanctions against your spouse when they are uncooperative and engage in inappropriate conduct. As with most situations, should your spouse injure you or be convicted of domestic violence, the court will be highly likely to award attorney’s fees and expenses against your spouse.
Family Code Section 271 states, “the court may base an award of attorney’s fees and costs on the extent to which the conduct of each party or attorney furthers or frustrates the policy of the law to promote settlement of litigation and, where possible, to reduce the costs of litigation by encouraging cooperation between the parties and attorneys.”
As you can see, your spouse may be ordered to pay your legal bills if they engage in uncooperative or inappropriate conduct. One limit on this rule is that your judge may not award these monetary sanctions, however, if the fee award would cause your spouse to be financially ruined.