As we all know, hiring an attorney to represent you could be very expensive. While it does provide some relief to you that you are not burdened with maneuvering the court system alone, especially during the pandemic, it is a financial burden, even for those who have the financial resources.
It is even more difficult if you are not receiving the court ordered child and spousal support. I have clients with such a compelling case that I take the case knowing that my fees may not be paid on time or even at all. But the law could facilitate and ensure that an individual is assisted by an effective attorney.
If there is a court order for child and/or spousal support that is being violated, FC 3577 should be requested by your attorney when filing your Request for Order to enforce the orders.
California Family Code (FC) section 3557
(a) Notwithstanding any other provision of law, absent good cause to the contrary, the court, in order to ensure that each party has access to legal representation to preserve each party’s rights, upon determining (1) an award of attorney’s fees and cost under this section is appropriate, (2) there is a disparity in access to funds to retain counsel, and (3) one party is able to pay for legal representation for both parties, shall award reasonable attorney’s fees to any of the following persons:
(1) A custodial parent or other person to whom payments should be made in any action to enforce any of the following:
(A) An existing order for child support.
(B) A penalty incurred pursuant to Chapter 5 (commencing with Section 4720) of Part 5 of Division 9.
(2) A supported spouse in an action to enforce an existing order for spousal support.
(b) This section shall not be construed to allow an award of attorney’s fees to or against a governmental entity.
If there is a court order for child and/or spousal support that is being violated, FC 3577 should be requested by your attorney when filing your Request for Order to enforce the orders.
For custody issues, the court may, during the pendency of the action, or at the final hearing thereof, or afterwards, make such order regarding the support, care, custody, education, and control of the children of the marriage as may be just and in accordance with the natural rights of the parents and the best interest of the children.
FC section 3121
(a) In any proceeding pursuant to Section 3120, and in any proceeding subsequent to entry of a related judgment, the 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, except a government entity, 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.
(b) When a request for attorney’s fees and costs is made, the court shall make findings on whether an award of attorney’s fees and costs under this section is appropriate, 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. If the findings demonstrate disparity in access and ability to pay, the court shall make an order awarding attorney’s fees and costs. A party who lacks the financial ability to hire an attorney may request, as an in pro per litigant, that the court order the other party, if that other party has the financial ability, to pay a reasonable amount to allow the unrepresented party to retain an attorney in a timely manner before proceedings in the matter go forward.
(c) Attorney’s fees and costs within this section may be awarded for legal services rendered or costs incurred before or after the commencement of the proceeding.
(d) The court shall augment or modify the original award for attorney’s fees and costs as may be reasonably necessary for the prosecution or defense of a proceeding described in Section 3120, or any proceeding related thereto, including after any appeal has been concluded.
(e) Except as provided in subdivision (f), an application for a temporary order making, augmenting, or modifying an award of attorney’s fees, including a reasonable retainer to hire an attorney, or costs, or both, shall be made by motion on notice or by an order to show cause during the pendency of any proceeding described in Section 3120.
(f) The court shall rule on an application for fees under this section within 15 days of the hearing on the motion or order to show cause. An order described in subdivision (a) may be made without notice by an oral motion in open court at either of the following times: (1) At the time of the hearing of the cause on the merits.
For custody issues, the court may, during the pendency of the action, or at the final hearing thereof, or afterwards, make such order regarding the support, care, custody, education, and control of the children of the marriage as may be just and in accordance with the natural rights of the parents and the best interest of the children.
FC section 2030(a)(1) is sometimes referred to as a “need-based award.” This statute requires the court “to 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 is reasonable, necessary for attorney fees and for the cost of maintaining or defending the proceedings during the pendency of the proceeding.”
The court must make a finding in every application of disparity in access and ability to pay. If the findings demonstrate disparity and ability to pay, the court shall make an order awarding attorney fees and costs.
FC section 2031
Oral attorney fee request may be made in open court, at any hearing until the time final judgment is entered. While this is allowed, the court will want advance notice along with the opposing party that fees and costs are being requested to be paid by the opposing party.
FC section 270-274, specifically 271 (sanctions)
These would be unnecessary and unjustified legal tactics that escalates acrimony and litigation cost. It could also entail bad faith negotiations and breach of fiduciary duties or “inaccuracies” being fostered.
The court has authority to order an award from any type of property, including income and community property. In short, the court has broad discretion to consider virtually all resources when determining an award for attorney’s fees.
Seeking legal counsel is advisable and as referenced above, there are ways that your legal fee can be paid by the other party. However, requesting a fee award and getting an order for such requires expertise. You can reach me at my office at 310-601-7144 if you have any questions or comments. Stay safe.
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