Attorney fees can be a very important issue in many divorce cases. Most family law litigants in California, and certainly their attorneys, are familiar with Family Code section 2030, which awards attorney fees on a “need and ability” basis. This statute is designed to make sure that each party has equal access to legal representation. This makes perfect sense: as a matter of public policy, we don’t want people prevailing on issues as important as child support and child custody because the prevailing party had an attorney and the losing party did not.
There are, however, many other mechanisms that allow the Court to award attorney fees and/or sanctions, many of which are underutilized. They are discussed below.
Statutory Prevailing Party Fees
Some statutes in the Family Code provide attorney fees to the victor. For example, the prevailing party may be entitled to fees at the Court’s discretion if they prevail on a domestic violence restraining order request, a child support modification request, or a spousal support modification request. It should be noted, however, that even if a party prevails on these motions, the Courts can still consider need and ability in awarding attorney fees, if such a request is before the Court.
Contractual Prevailing Party Fees
Pursuant to Civil Code section 1717, the Court can award fees and costs to the prevailing party if a previous agreement provided attorney fees and costs to the victor. These types of provisions are very common in marital settlement agreements as well as in premarital agreements. However, it should be noted, that even if there is prevailing party provision, the Court can still consider need and ability when awarding attorney fees if properly pled (see Marriage of Sherman).
Family Code section 271 sanctions
Family Code section 271 is designed to punish behavior that does not promote settlement of litigation and that does not encourage cooperation between parties and their attorneys. For instance, if parties and/or their attorneys file motions that lack merit, don’t attempt to settle cases in good faith, or take unreasonable positions in litigation, the Court can award sanctions to disincentivize that behavior. Please see our previous blog post on Family Code section 271 sanctions.
Sanctions under Code of Civil Procedure 128.7
Sanctions under Code of Civil Procedure 128.7 are also available in Family Court. This statute allows relief for frivolous arguments or for litigation brought for an improper purpose, such as to harass or to cause unnecessary delay. Unlike Family Codes section 271, a motion for sanctions under Code of Civil Procedure 128.7 includes a safe harbor provision. That is, the party alleging a violation must send an unfiled draft of the motion to the opposing party before filing it so as to allow the party engaging in the sanctionable conduct to withdraw their contention. Also unlike Family Code section 271, a motion under Code of Civil Procedure section 128.7 can be brought against the attorney, not just the party.
The Court may also award sanctions against a party based on the Civil Discovery Act. This allows the trial court to award sanctions for misuse or abuse of the discovery process or for conduct done without substantial justification.
The divorce attorneys at Bickford Blado & Botros are well-versed in dealing with complicated divorce issues, including attorney fees and sanctions. We practice exclusively in the area of family law and have extensive experience in all aspects of divorce litigation and related issues. Nancy J. Bickford is the only attorney in San Diego County representing clients in divorces, who is a Certified Family Law Specialist (CFLS) and who is actively licensed as a Certified Public Accountant (CPA). Don’t settle for less when determining your rights. Call 858-793-8884 in Del Mar, Carmel Valley, North County or San Diego.