Eugene E. Kinsey, Attorney at Law

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Court's Power To Award Fees & Costs:

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The superior court has express subject matter jurisdiction to "inquire into and render any judgment and make orders that are appropriate concerning . . . [t]he award of attorney's fees and costs." [Ca Fam § 2010(f)]

There are two sources of authority for fees and costs awards in dissolution, legal separation and nullity actions:

Need Based: Pursuant to Ca Fam §§ 2030 and 2032, the court is empowered to order the payment of fees and costs as between the parties, based on their "relative circumstances" (i.e., respective incomes and needs and abilities to pay) in order to ensure a parity of legal representation in the action.

As A Sanction (Penalty): Ca Fam § 271 provides the court with a powerful weapon to curb obstreperous conduct in family law proceedings by assessing fees and costs as a sanction.

Pursuant to Contract: Where, by marital settlement agreement or other contract between them, the parties have agreed to a recovery of fees and costs in an action arising under the contract, the contract itself provides an alternative basis for a fees and costs award. The Family Code fee award statutes are not determinative of entitlement to a fee award or the amount thereof when fees are sought pursuant to contract. [Marriage of Sherman (1984) 162 Cal.App.3d 1132, 1140, 208 Cal.Rptr. 832, 836]

When Attorney Fees/Costs Awards Can Be Made:

Family Code fees and costs may be awarded by the judgment and/or at any time during pendency of the action or for postjudgment appellate, modification or enforcement proceedings. [Ca Fam § 2030]

Furthermore, interim fees/costs rulings are not prejudicial to subsequent orders or allocations. Decisions on interim (pendente lite) fees and costs requests do not prejudice a party's right to a subsequent fees and costs award at a later date either before judgment, in connection with the judgment or in postjudgment proceedings.

In Fact, when certain statutory "disparity" findings are made, the Family Code virtually requires that an unrepresented (pro per) party be awarded a "reasonable amount" to enable him or her to "retain an attorney in a timely manner before proceedings in the matter may go forward." [Ca Fam § 2030(a)(2)]

However, a final judgment of dissolution, legal separation or nullity is final as to the need for an attorney fee award pertaining to matters disposed of by the judgment. Absent a reservation of jurisdiction, future attorney fee orders cannot be entered to account for legal services rendered prior to the judgment.

Discretion Of The Court In Making Attorney Fees/Costs/ Awards:

The trial court has broad discretion in ruling on a motion for attorney fees and costs in marital proceedings. The court's determination will not be disturbed on appeal absent a clear showing of abuse of discretion--i.e., that no judge could reasonably have made the order considering all the evidence viewed most favorably in support of the order.

The purpose of a § 2030 fee award is to ensure a party has adequate resources to adequately and properly litigate the controversy and to implement public policy favoring "a parity between spouses in their ability to obtain legal representation" (equalizing litigating strengths). The aim is not to "reward" the winner or "punish" the loser.

Therefore, the court's decision on a request for § 2030 fees must be based upon (1) an assessment of the parties'respective income and needs, (2) whether there is a disparity in their respective access to funds to retain legal counsel, and (3) whether one party is able to pay for legal representation of both parties. [Ca Fam § 2030(a)(1),(2) (amended Stats. 2010, Ch. 352)] And - both the making of the award and its amount must be "just and reasonable under the relative circumstances of the respective parties." [Ca Fam § 2032(a)]

By mandating consideration of the parties' relative circumstances, Ca Fam § 2032 authorizes a need-based fee award even though the applicant spouse might be able to pay his or her attorney without financial assistance. The other party's superior ability to pay may itself make a fees and costs award "just and reasonable." Similarly, a pro bono (free of charge) representation of an indigent party does not rule out a need-based award; the party's "need" simply transcends to the pro bono legal services organization.

In determining what is "just and reasonable" under the parties' "relative circumstances," courts must consider the need for the award to enable each party (both the applicant spouse and the other spouse), to the extent practical, to have sufficient financial resources to adequately present his or her case, taking into account to the extent relevant the circumstances of the parties described in Ca Fam § 4320.

On the other hand, the Ca Fam § 4320 standard cannot properly be applied without factoring in the proposed obligor's ability to pay an attorney fees award after payment of his or her other obligations (court-ordered spousal and child support, income tax liabilities, mortgage/rent and basic living expenses) and his or her own legal fees. Although party expenses shown on the income and expense declarations are generally not considered in fixing child support, they should not be ignored in adjudicating a need-based attorney fees request. "Expenses are relevant"; and, indeed, are among the factors listed in Ca Fam § 4320.

Limitations On The Discretion Of The Court In Making Attorney Fees/Costs/ Awards:

There are several limitations on the Court's discretion to make attorney fee/cost/sanctions awards:

Governmental Agencies: Need-based fees (Ca Fam § 2030 et seq.) may not be awarded against a governmental agency involved in a family law or child support proceeding. [Ca Fam §§ 273, 2030(a)(1); see also Ca Fam § 3557(b) (support enforcement proceedings. On the other hand, a governmental agency may be assessed fees and costs sanctions under Ca Fam § 271 in the same manner as may a private party (uncooperative conduct frustrating settlement). [Ca Fam § 273--". . . except when sanctions are appropriate . . ."]

Putative spouse limitation in nullity proceedings:
In nullity proceedings, the court's authority to award "need-based" fees and costs is qualified: The award may issue only in favor of a party who has "putative spouse" status (i.e., "innocent of fraud or wrongdoing in inducing or entering into the marriage, and free from knowledge of the then existence of any prior marriage or other impediment to the contracting of the marriage for which a judgment of nullity is sought"). [Ca Fam § 2255]

No jurisdictional bar as to Native Americans:
Federal law bars state courts from imposing any tax or charge against Indian Trust Allotment lands or any other Native American real or personal property (25 USCA § 410; 28 USCA § 1360(b)). However, that law does not preempt a family court's jurisdiction in a dissolution proceeding to award attorney fees against a Native American spouse whose income is derived from Native American property; the court is simply precluded from ordering that Native American property be used to discharge the fee obligation.

Not awardable as child support:
Attorney fees are not a component of presumptively-correct statutory formula child support (Ca Fam §§ 4055, 4057); nor does the statewide uniform child support guideline authorize an attorney fees award as "additional" ("add-on") child support (Ca Fam § 4062). Consequently, trial courts have no authority to award attorney fees as child support or "supplemental" child support.

Equitable allocation in complex cases: The court may make a finding that the case involves "complex or substantial issues of fact or law" concerning property rights, custody, visitation or support; and, pursuant to that finding, the court has discretion to equitably allocate between the parties attorney fees, court costs, expert fees and consultant fees. The order may provide for the allocation of separate or community assets, for security against those assets, and for payments from either party's income or anticipated income. [Ca Fam § 2032(d); see also Ca Fam § 2034(b)--sua sponte § 2032(d) equitable fees/costs allocation order authorized in connection with hearing on objections to "family law attorney's real property lien"]

Contractual waiver of fees/costs award: The parties' contractual waiver of the right to recover fees and costs will ordinarily bar a Family Code need-based fees and costs award, provided the waiver was knowingly and intelligently given and the agreement itself is otherwise enforceable under general contract law and applicable legal principles (But see Ca Fam § 1615 "involuntary execution" and "unconscionability" defenses to enforceable premarital agreements).

And Note: public policy limits the enforceability of a contractual fees and costs waiver to the extent it interferes with the court's ability to act on behalf of the parties' minor children.

Other Statutes Authorizing Attorney Fees/Costs Awards

Compensation for appointed counsel: Counsel appointed by the court to represent the minor children in contested custody/visitation cases (Ca Fam § 3150 et seq.) is entitled to a "reasonable sum" for compensation and expenses, to be determined by the court and to be paid by the parties in such proportions "the court deems just." [Ca Fam § 3153(a); Ca Rules of Court Rule 5.241]

UPA and exclusive custody actions: Family Code statutes similar to Ca Fam § 2030 authorize attorney fees and costs awards in exclusive custody actions and in UPA actions to establish parentage and custody/visitation. [Ca Fam §§ 3121]

Enforcement of out-of-state or foreign country order: In an action to enforce a sister state or foreign country custody determination under the UCCJEA, or a Hague Convention order for return of the child (international child abductions), the court "shall award" the prevailing party "necessary and reasonable expenses" incurred--including costs, communication expenses, attorney fees, investigative fees, witness expenses, travel expenses, and child care during the course of the proceedings--unless the party against whom the fees and expenses are sought establishes that the award would be "clearly inappropriate." [Ca Fam §§ 3450(b), 3452(a); 42 USCA § 11607(b)(3)]

False accusation of child abuse or neglect: Any witness, party or attorney who makes a knowingly false child abuse or neglect accusation during a child custody proceeding may be assessed "reasonable money sanctions"--not to exceed costs incurred by the accused party as a direct result of defending the accusation--plus reasonable attorney fees incurred in recovering the sanctions. [Ca Fam § 3027.1(a)]

Unwarranted disclosure of custody evaluation report: A party who makes an "unwarranted" disclosure of a written confidential custody evaluation report (i.e., a reckless or malicious disclosure not in the child's best interests) may be assessed a monetary sanction sufficient to deter repetition of the conduct (including reasonable attorney fees and costs incurred) unless the party "acted with substantial justification" or "other circumstances" make the sanction "unjust." [Ca Fam § 3111(d)]

Noncompliance with Ca Fam § 2100 et seq. declaration of disclosure requirements: A party who fails to comply with any provision of Ca Fam § 2100 et seq. (declaration of disclosure requirements) "shall" be assessed monetary sanctions "in an amount sufficient to deter repetition of the conduct or comparable conduct," including "reasonable attorney's fees, costs incurred, or both, unless the court finds that the noncomplying party acted with substantial justification or that other circumstances make the imposition of the sanction unjust." [Ca Fam § 2107(c)]

Prevailing party award in support modification, termination or set-aside proceedings: An order modifying, terminating or setting aside a support order "may include" an award of attorney fees and costs to the prevailing party. [Ca Fam § 3652]

Support enforcement proceedings: Ca Fam § 3557 provides for a generally "mandatory" attorney fee award in support enforcement proceedings. Notwithstanding any other provision of law, and absent "good cause" to the contrary, upon determining ability to pay and after consideration of the parties' respective incomes and needs in order to ensure each party has access to legal representation to preserve all of his or her rights, the court "shall award" reasonable attorney fees in any action to enforce an existing child or spousal support order or a Ca Fam § 4720 et seq. penalty for nonpayment of court-ordered child support. [Ca Fam § 3557(a)(1) & (2)]

UIFSA proceedings: Several provisions in the Uniform Interstate Family Support Act (UIFSA, Ca Fam § 4900 et seq.) provide for attorney fees and costs awards in proceedings to establish, enforce or modify sister state support orders. The UIFSA generally empowers a California court, acting as the "responding tribunal," to "[a]ward reasonable attorney's fees and other fees and costs" "to the extent otherwise authorized by law." [Ca Fam § 4919(b)(11)]

Need-based award in family law action for support of adult children: Parents have a statutory duty to support their adult children who are "incapacitated from earning a living and without sufficient means." [Ca Fam§ 3910(a)] When the parents litigate that issue in a dissolution, legal separation or nullity action, need-based attorney fees and costs are clearly awardable pursuant to Ca Fam § 2030 et seq. [Ca Fam § 2010(c); see Ca Fam § 58]

Proper Parties To A Request For Attorney Fees/Costs/ Award

Standing to seek award: Only a party to the action has standing to request a Ca Fam §§ 2030/2032 need-based fees and costs award, and only if reasonably necessary for that party's maintenance or defense of the action. Thus, application cannot be made on counsel's behalf (an attorney's recourse against his or her client is by a separate civil action. [Ca Fam § 2030]

Award against former spouse/domestic partner: As between petitioner and respondent, § 2030 need-based fees and costs are awardable even though one of the parties has since remarried or entered into a new registered domestic partnership after a final "status only" judgment of dissolution. Fees and costs may be awarded to that party in the later trial of the bifurcated issues because § 2030 is not tied to the payor's current relationship to the payee.

Award for pro per litigant to retain attorney: There is no requirement that a needy party have yet incurred an attorney fees obligation. To ensure a parity in litigating strengths, upon finding a disparity in access to funds to retain counsel and that one party is able to pay for legal representation of both parties, the court properly awards (indeed, it may be error not to award) an unrepresented party attorney fees at the outset to enable him or her to "retain an attorney in a timely manner before proceedings in the matter go forward." [Ca Fam § 2030(a)(2)]

Pro bono legal services: Where necessary to effect the purpose of Ca Fam §§ 2030/2032 (ensuring a "parity between spouses in their ability to obtain legal representation,"


Need-Based Award Application Procedure: Where Ca Fam §§ 2030/2032 need-based fees and costs are sought as part of the family law judgment, application is made initially in the Petition or Response at commencement of the case. Pendente lite fees and costs awards, as well as awards in postjudgment proceedings, issue by the trial court on noticed motion or OSC (except that OSC re Contempt is used in contempt proceedings). [Ca Fam § 2031(a)(1)]

Special rule dispensing with advance notice: Application for a temporary order making, augmenting or modifying a fee award can be made orally in open court without notice at the hearing of the cause on its merits, or at any time prior to judgment against a party whose default has been entered. [Ca Fam § 2031(b)(1) & (2)]

Issuance And Enforcement Of Needs Based Award

Attorney enforcement where order made payable directly to attorney: While the parties' attorneys have no standing to request a fees and costs award on their own behalf, the trial court has discretion to direct that a fees and costs order for the benefit of a party "be made payable in whole or in part to the attorney entitled thereto." In that event, the attorney becomes a judgment creditor with an independent, nonderivative right to enforce the order directly in the attorney's own name. [Ca Fam § 272(a) & (b)]

No attorney standing to appeal fee award: Attorneys for the parties have no standing to appeal a § 2030 fees and costs award because they are not themselves parties "aggrieved" by the judgment (as required by Ca Civ Pro § 902)

Relationship to property division: In most cases, the parties' liability to their respective attorneys is not a community obligation because incurred after separation (Ca Fam §§ 910, 2623(b)). Therefore, an attorney fee award has no effect on community property rights and is properly ordered paid independently of a division of the community estate. However, the court has authority to order payment of the award out of any type of property--whether separate or community, principal or income. [Ca Fam § 2032(c), Ca Fam § 2032(d)]

Unauthorized payment out of community property: On the other hand, if one spouse uses community property to pay his or her attorney before the property division, without the consent of the other spouse, the court can order that the nonconsenting spouse be given a credit for one-half the sum to effect the requisite net equal CP division. [See Ca Fam §§ 2602]

Sanctions Awards

Trial courts have independent authority to assess fees and costs against parties and/or their counsel under various sanctions statutes. In particular, this authority is conferred by Ca Fam § 271, uniquely applicable to Family Code proceedings.

Statutory standard: "Notwithstanding any other provision" of the Family Code, trial courts may base an attorney fees and costs award "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 cost of litigation by encouraging cooperation between the parties and attorneys." [Ca Fam § 271(a)]

Clients are entitled to "zealous representation" by their counsel. However, the § 271 requirements "also impose a minimum level of professionalism and cooperation" to effect the policy goal favoring settlement of family law litigation and a reduction of the attendant costs.

And this goes for parties who represent themselves. A party's status as a self-represented litigant is "no excuse"; pro per family law litigants are subject to § 271 sanctions under the same standards as represented parties.

Not need-based: A Ca Fam § 271 sanction award is distinct from a §§ 2030/2032 need-based award and, as a penalty, serves an entirely different purpose than a need-based award. The statute makes clear that culpable conduct will support a fees and costs assessment as a sanction without regard to the parties' "relative circumstances" and, more specifically, without regard to whether the award is "needed" to equalize litigating strengths. "Need" is irrelevant to the propriety or amount of a § 271 sanction award. "In order to obtain an award under this section, the party requesting an award of attorney's fees and costs is not required to demonstrate any financial need for the award." [Ca Fam § 271(a)]

No showing of injury required: Since the purpose behind § 271 is to promote settlement and encourage litigant cooperation, rather than to redress the infliction of actual harm, a § 271 sanction award is not conditioned on any showing of separate injury to the complaining spouse

Awardable exclusively against party: Under other statutes, either a party, his or her attorney or both are exposed to sanctions. However, Ca Fam § 271 contemplates that fee-shifting sanctions occur exclusively as between the parties to the action. In effect, the attorney's misconduct is imputed to the client.

Amount Of Sanctions Award Not limited to consequential expenses: Ca Fam § 271, unlike other sanctions statutes (e.g., Ca Civ Pro § 128.7), does not require a direct correlation between the amount of the sanction imposed and expenses incurred in resisting the sanctionable conduct. Thus, potentially greater sanctions are awardable under Ca Fam § 271. By the same token, there is no "minimum" limit on a § 271 sanctions assessment. Thus, nothing in the statute requires that the sanction imposed compensate for all fees and costs expended as a result of the sanctionable conduct.

Cannot impose unreasonable financial burden: Other limitations unique to § 271 place an ultimate cap on the awardable amount. While "need" is irrelevant, the court must take into consideration "all evidence concerning the parties' incomes, assets, and liabilities." And in no event may the amount of the sanction impose "an unreasonable financial burden" against the sanctioned party. [Ca Fam § 271(a)] In effect then, a § 271 sanction must be scaled to the payor's ability to pay.

Procedure: As a sanction, Ca Fam § 271 awards are subject to the same due process prerequisites governing other sanctions assessments: An award of fees and costs as a sanction pursuant to § 271 "shall be imposed only after notice to the party against whom the sanction is proposed to be imposed and opportunity for that party to be heard." [Ca Fam § 271(b)]

Ca Fam § 271 fees and costs requests generally should be presented by noticed motion (see Ca Rules of Court Rule 3.1702); but there is no statutory requirement that the motion be made, or the sanctions be assessed, at any particular stage of the litigation

Attorney Fees & Costs:

Choose Full Service Or Represent Yourself:

$2,000 Flat. You represent yourself in Court. Includes document prep. plus 2 hours of consultation and research if necessary.
Full Service:
Uncontested $3,000 Flat; Contested $300 per hour against a minimum fee of $5,000 plus costs of suit