By Pamela Edwards-Swift, CFLS
Quite often I am asked by a client if he or she can recover their attorneys’ fees from the other party. The answer I give the client depends upon their particular circumstances.
Family Code §2030 sets forth the basic considerations in awarding attorneys’ fees. Specifically, the award must be just and reasonable under the parties’ circumstances.
One of the considerations the court must look at is the financial circumstances of the parties. (i.e., “Who makes more? What is their net spendable income, etc.?) The “lingo” traditionally used by attorneys and the courts are “need and ability to pay.” The Family Code specifically states that the court may award attorneys’ fees based upon “…
- determining an ability to pay and
- consideration of the respective incomes and needs of the parties in order to ensure that each party has access to legal representation to preserve all of the party’s rights…”
Notice that this section says the court may award attorneys’ fees, which means that it is completely discretionary on the part of the Judge to award, or not, attorneys’ fees incurred by a party.
The best way to demonstrate how this works is to give you two examples of cases in my office and why I believe there were different rulings by the court. In the first matter, the parties had been married approximately twenty years, the husband made about three times the amount the wife did, they had sold the family residence, but there was little left over after paying off the community debts. In this case, the wife was awarded attorneys’ fees. In the second matter, the parties had been married approximately twenty years, the husband made about four times the amount of the wife, they had sold the family residence and split the equity, approximately $60,000.00 equally. In this case, the Judge refused to award attorneys’ fees to the wife. Even though the Judge should have awarded attorneys’ fees based upon the disparity in the parties’ incomes, I think he did not award attorneys’ fees because of the equity each party received from the sale of the family residence. In addition, in the latter case, the Judge made a very hefty award in spousal support payable by the husband to the wife, thereby bringing their net incomes closer together.
Last, Family Code §271 states that a court may base an award of attorney’s fees and costs based upon the conduct of each party or attorney in frustrating the policy of the law to promote settlement of litigation and reduce the cost of litigation by encouraging cooperation between the parties and attorneys.
My philosophy — ask for the attorneys’s fees. The worst that could happen is the Judge denies the request.