There are several types of situations when a judge can order one side to pay the other side’s lawyer’s fees. In divorces or legal separations, a spouse or domestic partner can make that request in court from the very beginning of the case. There are other family law cases, even if the parties involved are not married or in a domestic partnership, when one side can ask for lawyer’s fees. Some examples include custody and visitation cases where the parents are not married to each other, child or spousal support cases, and domestic violence cases. There is a third situation, all cases, when one side can ask the judge to order the other side to pay a sanction (a fine or a penalty) for doing something illegal or unethical.

Pursuant to Family Code 2030 et seq., California Family Courts are authorized to make an order requiring any party to litigation to pay a reasonable portion of the opposing party’s attorney’s fees, so that the latter can maintain or defend a proceeding. To make this award, the courts consider the relative circumstances of the parties. (Family Code 2032(b).) This is referred to as the “need versus ability to pay” analysis, which has been codified in Family Code § 2030(a).

When determining “need” the Court must assess this need relative to the other party’s ability to pay. To do so, the Court will consider all evidence of the parties’ assets, current income, investments, and income producing properties.

It is important to note that the court will limit the award to an amount necessary to efficiently and expeditiously handle the instant matter. If a party to litigation has an attorney that engages in tactics designed solely to unnecessarily prolong and litigation, then that party is unlikely to receive attorney’s fees.

The court can order an award for attorney’s fees and costs only if the party ordered to pay the award has the ability to do so. When considering “ability,” the court will consider almost all sources of income, including wages, community property, and investment income. In determining ability to pay, the court may also consider new mate or partner income.

When considering “ability” to pay, the court is also authorized to consider a party’s earning ability, as opposed to actual earned income. The court typically does this when current income does not accurately reflect the party’s financial ability. (See, e.g., In re Marriage of Sullivan (1984) 37 Cal. 3d 762, 768–769, 209 Cal. Rptr. 354, 691 P.2d 1020 (court made reasonable inference that husband’s medical practice would continue to flourish and his income would increase although present expenses exceeded income.)

The superior court has express subject matter jurisdiction to “inquire into and render any judgment and make orders that are appropriate concerning . . . [t]he award of attorney’s fees and costs.” [California Family Code §2010(f)]

There are two sources of authority for fees and costs awards in dissolution, legal separation and nullity actions:

Need Based: Pursuant to California Family Code §2030 and California Family Code §2032, the court is empowered to order the payment of fees and costs as between the parties, based on their “relative circumstances” (i.e., respective incomes and needs and abilities to pay) in order to ensure a parity of legal representation in the action.

As A Sanction (Penalty): California Family Code §271 provides the court with a powerful weapon to curb obstreperous conduct in family law proceedings by assessing fees and costs as a sanction.  California Family Code §271 is possibly the one California Family Code statute that gives family court judges the power to reign in out of control litigants – and more importantly – their lawyers through awards of attorney’s fees and costs. Its stated purpose is to enable judges to sanction conduct that increases the costs of litigation through uncooperative tactics which otherwise extends the misery of (frequently, but not always) of the less monied spouse or non-marital family law litigant.

Pursuant to Contract: Where, by marital settlement agreement or other contract between them, the parties have agreed to a recovery of fees and costs in an action arising under the contract, the contract itself provides an alternative basis for a fees and costs award. The Family Code fee award statutes are not determinative of entitlement to a fee award or the amount thereof when fees are sought pursuant to contract. [Marriage of Sherman (1984) 162 Cal.App.3d 1132, 1140, 208 Cal.Rptr. 832, 836]

The trial court has broad discretion when determining the award amount, and its decision will only be overturned on appeal if you can show an abuse of discretion on the part of the trial court. This is a very high burden to meet. The Court of Appeals will only overturn the trial court’s decision if, considering all of the evidence viewed most favorably in support of its order, no judge could reasonably have made it. (In re Marriage of Huntington (1992) 10 Cal.App.4th 1513, 1521 [14 Cal.Rptr.2d 1].)