Most divorce litigants are unfamiliar with the family law statutes and cases regarding attorney fees and costs. In the criminal law arena, the average person knows that the accused has a constitutional right to representation by an attorney whether or not they can afford to pay for one and that the prosecution is paid for by the state. Most people also know that in the civil litigation system, the “loser pays all” rule applies in some jurisdictions or in particular cases. Under these circumstances, an individual with a legitimate legal claim or defense does not take on a big hit for attorney fees when pursuing his or her rights. Justice can prevail in a criminal or civil courtroom and the winning party can leave feeling vindicated. Unfortunately, most family law litigants are hit with the harsh truth at the beginning of their divorce case. There are no winners in the family law world and justice has no place in a family law courthouse.
According to California case law and statutes, there are two main methods by which a family law litigant can collect attorney fees and costs from the other side. First, if a party can prove obstreperous conduct by the other side which has frustrated the policy of settlement in the case, he or she may recover some monetary compensation in the form of sanctions. However, it often costs thousands of dollars to bring to bring a sanctions motion and such a motion often derails the case at hand resulting in additional fees and costs. Second, if a party can demonstrate a true disparity in income and assets such that he or she cannot pay his or her own fees and that the other side has the ability to pay, the party may recover attorney fees and costs from the other side. However, an award of attorney fees based on need and ability is within the discretion of the family law judge, and after payment of support and division of assets there is no real disparity between the parties.
In a large portion of San Diego family law cases, each party must pay his or her own attorney fees and costs. The average cost of a divorce in the United States is $20,000 with a likely much higher average in California, particularly in the city of San Diego. As a result of the cost of divorces, more often than not, divorce litigants cannot afford to pursue “justice” in court. For example, if a spouse has a valid $25,000 separate property claim, but the other side simply will not agree that such a claim exists, the spouse will likely waive the $25,000 claim because a trial on that issue would undoubtedly cost more than the claim is worth. The only option that parties in this situation have is to go into court self-represented. For the average person, the idea of conducting a trial is overwhelming and seems impossible. In addition, most people do not have the time and resources to devote to proper trial preparation.
The current attorney fees regime governing California divorce cases often leaves parties frustrated and feeling slighted by the “system”. Fortunately, there is a little relief available for family law litigants in the County of San Diego. The Family Law Facilitator’s office provides free legal assistance; however, the facilitators will only assist with document preparation and cannot give legal advice or represent clients. In addition, many non-profit organizations provide free legal representation and other forms of support to victims of domestic violence.
Please contact us if you are considering a divorce from your spouse, a legal separation, or have questions regarding child custody and visitation. 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.