More so than in other areas of the law, attorney fees can be a critical part of a divorce case. In most civil cases, a party is awarded attorney fees only after they have prevailed in their case and only where attorney fees are specifically provided for by statute or by contract. In family law cases, the availability of attorney fees can make a huge difference during the case, as well as after it.
There are a variety of different attorney fee provisions under the Family Code. The code section most utilized is Family Code section 2030 et seq. These are the statutes that award attorney fees based on need and ability. The reason for this statute is pretty simple. There is no reason the spouse earning $100,000 per year and the stay-at-home spouse should have unequal access to a quality attorney. They both should have equal access to counsel regardless of their annual income.
This post won’t be covering the fees awarded on a “need and ability” basis. We are going to discuss attorney fees as sanctions under Family Code section 271. These sanctions punish bad behavior in spouses (and their attorneys). It is not used as often as Family Code section 2030 et seq, but it can be just as powerful.
Family Code section 271 reads as follows:
(a) Notwithstanding any other provision of this code, the court may base an award of attorney’s fees and costs on the extent to which the conduct of each party or attorney furthers or 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. An award of attorney’s fees and costs pursuant to this section is in the nature of a sanction. In making an award pursuant to this section, the court shall take into consideration all evidence concerning the parties’ incomes, assets, and liabilities. The court shall not impose a sanction pursuant to this section that imposes an unreasonable financial burden on the party against whom the sanction is imposed. In order to obtain an award under this section, the party requesting an award of attorney’s fees and costs is not required to demonstrate any financial need for the award.
(b) An award of attorney’s fees and costs as a sanction pursuant to this section shall be imposed only after notice to the party against whom the sanction is proposed to be imposed and opportunity for that party to be heard.
(c) An award of attorney’s fees and costs as a sanction pursuant to this section is payable only from the property or income of the party against whom the sanction is imposed, except that the award may
The Courts have awarded sanctions for a wide variety of behavior, such as:
- Overly aggressive letters to opposing counsel
- Dilatory tactics
- Bad faith settlement proposals
- Deliberately hiring overly aggressive counsel to replace reasonable counsel
- Motions filed and pursued that lack merit
- Taking unreasonable positions in litigation
- Failure to adequately disclose
- Lodging or filing confidential mediation briefs with the Court
- Unprofessional conduct
- Filing declarations that are argumentative or contain otherwise inadmissible material.
- Not attempting to settle the case in good faith
The best part of Family Code section 271 sanctions is that it is a deterrent to the above listed behavior. Most family attorneys know they can’t get away with these kinds of shenanigans.
The divorce attorneys at the Law Offices of Nancy J. Bickford are well-versed in dealing with complicated divorce issues, including 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.