FC 2030 (a)(1) states that in a proceeding for dissolution of marriage, nullity of marriage, or legal separation of the parties, 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.
There will be documentary requirements to request for attorney’s fees and the court will have the discretion whether awarding such fees under FC 2030 is appropriate. The two elements that the court must find are (1) whether there is a disparity in access to funds to retain counsel (2) 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 cost. 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 to pay for his/her legal bills. If the court order that the other party has the financial means to pay a reasonable amount, a request for continuance to find an attorney should be asked in a timely manner.
The legal fees and costs for legal services rendered before or after the commencement of the proceedings could be requested. The court shall rule on an application for attorney’s fees within 15 days of the hearing on the motion or order to show cause. The court shall rule according to what is just and reasonable under the circumstances. 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.
Either party may, at any time before the hearing of the cause on the merits, on noticed motion, request the court to make a finding that the case involves complex or substantial issues of fact or law related to property rights, visitation, custody, or spousal and child support. Upon that finding, the court then can determine the appropriate, equitable allocation of attorney’s fees, court costs, expert fees, and consultant fees between the parties.
The exception to FC 2030 is to request attorney’s fees against a government entity. For example, many parentage (paternity) and child support cases are opened and enforced by the state Department of Child Support Services. The non-custodial parent is not allowed to requests from the court that the government pay for him/her to be represented by an attorney or pay for court costs, expert fees etc. When you are the non-custodial party in a government enforced case, you must incur your own attorney’s fees and costs in challenging or defending your case.
You are not guaranteed the right to have an attorney in family court, except in very limited cases, where a contempt hearing, may allow the judge to see if a public defender could legally represent you. But practically speaking, when you are going through a divorce, a custody, visitation, child/spousal support, property allocation, family law restraining order hearings, these types of court hearings are deemed civil in nature and requires you to pay for your own attorney.
Under certain conditions, I will request that fees and costs be incurred by the opposing party if relevant and reasonable. Having the other party pay for your attorney is an issue that could proceed to trial so make sure that the family law attorney you hire is experienced in pre-trial and trial work.
Next article: Attorney’s fees and costs based on sanctions.