It is no secret that hiring an attorney can be costly. A spouse may be hesitant to seek legal counsel in their divorce or related family law matter, thinking that they would be unable to afford it. However, it is extremely important to have legal representation in certain matters, and this is especially critical where the other party is represented by an attorney. In such a case, in order to ensure adequate representation, a spouse may be entitled to an attorney’s fees and costs award (hereinafter referred to as simply an “award”); or a court order that the other party is to pay attorney’s fees and costs for BOTH parties.
Under the Family Code, a court has the ability to make such an award on two bases. First, an award can be “need-based,” which takes into account the specific needs and circumstances particular to each case. Second, an award can be ordered as a sanction. This is essentially a tool for the court to use as a punishment to one party who has taken some sort of unruly action, in hopes of deterring such behavior in the future.
In need-based awards, the court’s goal is to ensure that the parties have relatively equal legal representation. Not only can a court order an award for fees that have already been incurred, it can order a reasonable amount of fees to an unrepresented party so that they are able to actually retain an attorney before the case proceeds.
Awards in the form of sanctions are most often awarded in instances where conduct of a party (or attorney) “frustrates the policy of the law to promote settlement of litigation and, where possible, to reduce the cost of litigation by encouraging cooperation between the parties and attorneys.” Basically, it becomes an issue when a party is being downright uncooperative and their actions are causing extra attorney’s fees even despite the other party’s best efforts.
Other examples of cases where a court can impose sanctions are:
• When a party makes false accusations of child abuse or neglect in a custody case (FC §302.7);
• If a party maliciously discloses a confidential custody evaluation report in custody litigation (FC §3111(d) & (f));
• If a party doesn’t comply with declaration of disclosure requirements (FC §2100 et seq.);
• If a party doesn’t pay or reimburse for a child’s uninsured health care costs as required by statute (FC §4063);
• For violating rules of court (CRC 5.14); and
• For bad faith or frivolous actions or conduct (CCP § 128.5).
Ultimately, while fee awards aren’t automatic, and the court has to take in many considerations when making fee awards, they are often ordered in family law proceedings. Whether you are considering divorce or you have already been served with divorce paperwork, is important that you contact an attorney in order to examine your options. If your spouse is represented by an attorney, it is especially important that you seek out counsel of your own. Having only one represented party can lead to serious trouble in even the most amicable divorces. Make sure to protect yourself and your rights.
Fortunately, the divorce attorneys at the Law Offices of Nancy J. Bickford are here to help. 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.