Can the Court Require My Spouse to Pay Attorney Fees in Our Divorce?

If you are anticipating getting divorced in the near future in California, you may have questions and concerns about the affordability of your divorce or about your spouse seeking funds to pay for their attorney in the divorce. In short, you may be wondering about how California law considers the matter of attorney fees in a divorce, and whether one spouse can ask the court to require the other spouse to pay their attorney fees. In general, each spouse is responsible for covering their own attorney fees in a divorce proceeding, but there are statutes that give the courts authority and sometimes discretion to order one spouse to contribute towards the attorney’s fees of the other spouse that may apply to your divorce case. Our San Jose divorce attorneys can explain in more detail.

California Law on Divorce and Attorney Fees

Generally speaking, California law presumes that each spouse in a divorce proceeding will be covering their own attorney fees if they have an attorney. At the same time, California courts want to ensure that the legal divorce process is fair to both spouses. As such, in cases where one of the spouses earns substantially more than the other spouse, or where one of the spouses has significantly more assets and/or access to funds than the other spouse, the court may require one of the spouses to pay for the other’s attorney fees in the divorce if the lesser-earning spouse does not have sufficient funding to cover attorney fees and if they request the court to make such an order.

The specific requirements are set forth under Section 2030 of the California Family Code:

“[T]he court shall ensure that each party has access to legal representation, including access early in the proceedings, to preserve each party’s rights by ordering, if necessary based on 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 during the pendency of the proceeding.

There is a similar statute for paternity cases if the spouses were not married but have a child or children together, which is California Family Code section 7605.

Factors for Determining Whether Attorney Fees Will Be Ordered Under the California Family Code

In order for one spouse to receive attorney fees from the other spouse, that spouse in need of attorney fees must make a request for them to the court through a Request for Order, which is also known as a motion. Then, the court will look at a series of factors to determine “whether there is a disparity in access to funds to retain counsel, and whether one party is able to pay for legal representation of both parties.” The court is required to make these findings in order to make an order for a party to pay the other party’s attorney’s fees or to make a contribution towards the other party’s attorney’s fees.

To make that determination, the court will consider factors to identify an amount that is “reasonably necessary” under Section 2032 of the California Family Code. For example:

• Each party’s current income;
• Each party’s current assets; and
• Each party’s current expenses and debts.

The court may also consider the standard of living during the marriage and the complexity of the parties’ impending divorce case.

If the court makes findings that there is a disparity in the parties’ access to funds to retain counsel, that one party is able to pay for both parties to obtain legal representation, and that the other party has a need for an attorney fee award, the court is required to make an attorney fee award pursuant to the statute.

Contact Our San Jose Divorce Lawyers for Assistance with Your Divorce in California

If you have any questions about the divorce process in California, or if you need specific information about how the court will potentially require the payment of attorney fees in your case, you should seek legal advice. One of the experienced San Jose divorce attorneys at Foster Hsu, LLP can speak with you today to learn more about the details of your case, discuss the potential application of Sections 2030 or 7065 of the Family Code to your case, and begin working with you on your case. Contact our firm for more information and to learn more about how we can assist you.

Sources:

leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?sectionNum=2030.&lawCode=FAM

codes.findlaw.com/ca/family-code/fam-sect-2032/