Not having the funds to retain an attorney is a source of great anxiety for many family law litigants. Proceeding without an attorney can have negative economic consequences. It is already an emotional issue and it seems even more impossible to navigate and comply with the strict guidelines required in a divorce case.
Without a skilled advocate to guide you, the hurt or anger you feel may not be expressed properly or at all. How do you get an attorney retained, and paid through to the conclusion of the proceedings?
Are you entitled to use your funds or monies held in joint bank accounts? Are you allowed to access a joint credit card? Maybe you need to borrow money from friends or family to retain an attorney and how do these people get paid? Should your spouse contribute toward your fees? What does it take to obtain a court order for attorney fees and what do judges consider? Will a lawyer accept a lien on real estate? These are common questions asked when deciding to go through a divorce alone or with an attorney.
Maybe you began your case as a self-represented party, but this is not working especially if the other party has an attorney and you now decide not to continue without one. Family Code section 2030 is the California statute governing attorney fees in marital or domestic partnership dissolution. This section applies to initial order for fees, and to later modifications and post-judgment proceedings.
Its purpose is to “ensure that each party has access to legal representation to preserve each party’s rights by ordering if necessary based upon 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…”
Courts are directed to look at the “respective incomes and needs of the parties” and “any factors affecting the parties’ respective abilities to pay.” They must also consider disparities between the parties’ access to resources.” If the findings demonstrate disparity in access and ability to pay, the court shall make an order awarding attorney’s fees and costs.”
A revision to Family Code section 2034 is very important since the legislature has declared that the other party’s separate property can be accessed to pay for your fees. “The court may order payment of an award of attorney’s fees and costs from any type of property, whether community or separate, principal or income.”
When courts make an award of attorney’s fees, the amounts ordered may be payable at once, or over time. If there are sufficient cash assets for the other party to pay the award at once, the order is usually made payable “forthwith.” If the fees are coming from the other party’s income as opposed to cash sitting in the bank, the court’s order will probably be payable at a fixed monthly rate over time. The key is showing to the court there is ability of the other party to pay attorney’s fees and this party has access to funds. I welcome your comments or questions, please feel free to email me at [email protected] or visit my website at attycastaneda.com.