Divorce is not fun. It can also be very costly due to the protracted nature of proceedings. Sometimes, this is just the reality of a highly contested separation and a complex financial scenario. Other times, divorce can be costly because of one party unreasonably drawing out the process. This sounds unfair, right? Well, the state legislature thought so, too. Thus, the advent of attorney’s fees in divorce, which allows for the aggrieved party to recoup their fees from the other side. So, how exactly do attorney’s fees work?
How Attorney’s Fees Are Awarded
There are several different situations where courts allow for the award of attorney’s fees, but they are often complex and dependent on the facts of each case. Generally, Family Code Section 2030-2034 covers attorney’s fees and outlines the multi-factor test that courts use when deciding when to award them. This multi-factor test, in part, includes analyzing whether the award is “appropriate,” whether one party cannot afford attorney while the other can (disparity in access), and whether one party can pay for both parties to retain legal representation. There are additional circumstances where attorney’s fees may be awarded that are not covered in the Code but found in case law. These situations are best left to an experienced attorney to handle.
Amount of Attorney’s Fees Award
Trial courts have wide discretion in determining just how much a party is able to receive in attorney’s fees. This is because the facts of each case are highly unique. When distributing an award, the court can consider almost all of a party’s financial assets and resources. On appeal, if a party is disputing the trial court’s award, the appellate court will hold the trial court to the “abuse of discretion” standard. Because the burden in meeting this standard is quite high, it is not very likely that its decision will be overturned.
Requesting Attorney’s Fees
A request for attorney’s fees may also be made at any point during the proceeding and may be for costs incurred before and after the start of the proceeding. Costs incurred after entry of judgment may be awarded if reasonably necessary to defend or maintain in future proceedings.
The party making the request for attorney’s fees will need to file a Request for Order form (FL-300) with the appropriate court with the Request for Attorney’s Fees and Costs Attachment (FL-319). And since income is at issue, the requesting party will also need to include an Income and Expense Declaration form (FL-150), a personal declaration in support of the request, along with any other paperwork relevant to the request.
Thinking about Requesting Attorney’s Fees but need help? The experienced family law attorneys at Butler Law, PC can guide you through the process. Contact our office today!