Family Law – Generally:
I believe a good general “assumption” for family law is that the likelihood of full attorney fees and costs being awarded is generally not clear-cut even if the statute or specific issue allot for the requesting of those fees.
For example, child support, spousal support, and judgment enforcement issues which depend on the factual circumstances to provide for the requesting of attorney fees and costs as a result of having to seek enforcement or redress rarely result in a full 1-to-1 reimbursement for those fees and costs requested. This is partially because income and reasonableness are often also factors in the issuance of any attorney-fee-cost awards or sanctions under the Family Code Sections that are applicable for example.
Another scenario and issue that doesn’t quite have to do with the ability to seek an order for fees and costs but, is often problematic in that context is collecting the fees and costs from the other party if they were hypothetically ordered to pay – which is often extremely difficult and which many Family Law litigators do not do as part of their practice either.
So, in sum, unlike some other areas of the law where there’s a high likelihood of being able to claim and obtain prevailing party attorney fees and costs, Family Law is an area where that likelihood is significantly less clear-cut and often fraught with secondary issues related to actually collecting any ordered amount further impacting the ability to be reimbursed for fees and costs sought.
As a result, it would generally be advised to not look at family law litigation as a manner of necessarily being reimbursed for the cost of litigation through “winning” but rather, starting with the process of:
(1) is it even possible to request attorney fees and costs for the particular cause I want to litigate over; and
(2) is it feasible that I would be able to collect any award I would obtain?
Each of these questions would be best discussed in depth and in detail with a licensed and experienced California Family Law attorney as this specific area of law is simply much more opaque than other areas when it comes to this scenario.
Domestic Violence Restraining Order – Prevailing Party:
One area of Family Law proceedings where the fee and cost issue are quite clear and not opaque though is prevailing party attorney fees and costs for either pursuing or defending a domestic violence restraining order (“DVTRO”).
If you are deemed the prevailing party after trial in a DVTRO you could seek reimbursement for your attorney fees and costs in that matter as the prevailing party by code.
There is also no statute of limitations on your ability to seek those fees and costs as the prevailing party. With that said, collection is often another matter entirely, but this is one instance where that ability is very clear in this area of law.
Sanctions & Costs:
There are various scenarios where sanctions and attorney fees and costs may be available to request in Family Law litigation and the specifics of that ability, the amount, and your ability to do so will be specific to your unique case and set of circumstances. With that said, Family Code Section 271, broadly provides the ability to seek both sanctions and attorney fees and costs for conduct that generally frustrates the possibility of settlement or otherwise frustrates the policy of the law. However, like many other fee-related sections within the Family Law umbrella, the court takes into consideration evidence concerning the Parties’ incomes, assets, and liabilities and will not impose an unreasonable financial burden on the party against whom the sanction is imposed.
As a result, these sanctions are generally in practice fairly toothless, unlike many Civil contractual or statutory provisions that allow for fee shifts of sanctions that do not consider the financial burden the issuance of such sanctions or costs will incur to the party they are being issued against.
Conclusion:
The ability to obtain attorney fees and costs in Family Law is broadly complex and generally fraught with various pitfalls and issues. This should best be discussed and addressed with an experienced California Family Law attorney due to the many factors and different scenarios that may offset or otherwise impact any attorney fee and cost request in a family law matter.