Family Code (FC) 2030 (a) to (d) enables a party without financial resources to have an “equal” playing field. Access to representation and preservation of each spouse’s rights is critical. This code section applies to divorces, annulment or legal separation cases and any subsequent family law matter related to those three types of actions.
The code in part, “ensures that each party has access to legal separation; preserve each party’s rights by ordering whatever amount is reasonably necessary for attorney’s fees and for the cost of maintaining or defending the pending action; and make these orders based on the income and needs of the parties.”
The trial court must state its findings on the following issues when it rules on such an attorney fee request: (1) whether an attorney fee and cost award is appropriate; (2) whether the parties have a disparity in access to funds to hire an attorney; and (3) whether one party is able to pay for legal representation of both parties.
If the court finds that there is disparity and ability to pay by one party for both attorney fees, the court must make an attorney fee and costs order. This code sections allow a self-represented party who does not have the financial ability to hire an attorney to ask the court to order the other party to pay for the fees. The code allows the court to award attorney fees and costs for legal services before or after the case commences.
The court can increase or modify the initial attorney fee award it made. The court can do this if it reasonably necessary to prosecute or defend the proceeding, and any related proceeding and even after an appeal’s conclusion.
The court can even award fees against a non-party but is limited to the amount “reasonable necessary to maintain or defend the action on the issues relating to that party.”
The request for fees and costs is made through a “request for order” and the court must make the ruling “within 15 days of the hearing on the motion.” FC 2031. The attorney fees/costs award should be “just and reasonable under the relative circumstances of the respective parties.” FC 2032.
Under FC 2032, the court will review the “need for the award to enable each party, to the extent practical, to have sufficient financial resources to present the party’s case adequately, taking into consideration, to the extent relevant, the circumstances of the respective parties described in FC 4320.” FC 4320 deals with spousal support.
FC also states that just because the person requesting fees has the “resources” to pay his or her own attorney’s fees does not automatically mean he or she will not get an award for it from his or her spouse. The code states that it is just one factor. The court’s job is to equitably divide the litigation’s overall cost between the parties.
In fact, FC 2032 can order attorney fees/costs from “any type of property” whether community or separate principal or income. Divorce and family law cases are not suppose to allow one spouse who has significantly more income or access to money to “overcome” the other party who has lesser or no financial means.
While FC 2031 allows an oral request to be made, the reality is that the court wants notice to the other party (in a form of a Request for Order) so everyone, including the judge has some time to review the facts and legal analysis of the parties’ respective positions.
FC 2030 and 2032 allows fees/costs to be paid from community, separate property, principal or earnings—almost everything except from a retirement plan.
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