A divorce process can be complicated, and both financially and emotionally draining. It is not surprising that you may not be able to afford legal representation especially in a long drawn out divorce. If you are in this situation, you should not worry because the law will enable you to get the representation that you need to preserve all of your rights. What you should do is to seek the counsel of experienced attorneys from the San Diego Family Law Attorney law firm, who will guide you on your best available options. We have expertise in all matters concerning family law, including divorce.
Who Pays Attorney Fees in a Divorce?
If you are filing for a divorce, you must first know who will pay for the legal fees. It isn’t just as easy as each spouse paying only for their own attorneys, and this is the reason why; assume you weren’t the primary income earner in the course of your marriage and you are headed for a dissolution, but you cannot afford an attorney. Will the divorce go on or be postponed till you can afford representation? The answer to this is that you have several options to enable you to pay your attorney’s fees.
This information is also helpful to high income-earners since they often are not aware or they haven’t been told that they might have to pay legal fees for their low income-earning spouses.
There are two ways, both authorized by the court, through which you can get to pay your legal fees and costs in a divorce, annulment, or legal separation. They include;
- Need-based
- Family Law sanctions
Need-Based Legal Fees
When you decide to enter into a divorce in California, you may hire a divorce attorney by paying them a flat fee, a retainer fee, or making a security deposit. Whichever way you choose to pay your lawyer, you have to make some form of payment beforehand. California law forbids divorce attorneys to enter in any fee agreement based on a contingency fee.
For the financially disadvantaged spouses, you still have options to have your legal fee paid near the start or at the beginning of the proceeding. Family Code 2030 gives judges the mandate to issue need-based legal fee orders if there’s a variation in accessing funds for attorney representation between divorcing spouses.
It is the public policy of California to make sure that each spouse receives attorney representation in cases of legal separation, divorce, or nullity. Thus, judges of the family court have a duty to consider the financial variation between the spouses and create what is referred to as ‘a level playing field’ to enable the spouse with a lower income to pay a lawyer and other experts to help defend him/herself in a similar manner as the high-earning spouse.
Creating a Level Playing Field
As earlier elaborated, it would be unfair for a spouse that earns a higher income to pay an expert attorney, leaving the low income-earner spouse to match intelligence with the attorney on their own because they cannot afford an attorney.
One way family court judges can create a level playing field is by ordering the high-earning spouse to pay litigation costs and attorney’s fee for the lower-earning spouse. Alternatively, judges can order for the marital assets to be liquidated to enable you to pay your attorney’s fee. The judges will debit what you have to pay your lawyer from your portion of the marital property after the divorce has been finalized.
Factors a Court Uses to Award Legal Fees
The authority of judges to award finances depends on either California statutes or the court itself, irrespective of statutory allowances. This means that the ability of you receiving the funds to continue with the divorce and pay your attorney remains at the discretion of the court that you brought the divorce case unless a statute specifies otherwise.
Since it is the judges who decide the amount of attorney’s fee you receive, you have to provide them with the necessary information. It is essential that the information you provide be correct. You should pay careful attention to the expense and income declaration as well as other declarations and needed forms.
Often, spouses miss steps when providing information to the judge, which leads to the fee award being denied because some details were incorrectly done, missing, or inconsistent. However, the better part is, as long as there’s a financial variation, the judges have to award a need-based legal fee at least.
Different from certain civil cases where the legal fee can be granted to the party that is prevailing in the case, in divorce cases, the legal fee is usually given to the spouse that has a high financial need. Even though the payment is discretionary and not awarded based on the prevailing party, the judges have to analyze whether or not an award of the fee is reasonable and just under the circumstances. They are forbidden from just casually examining the financial situation and believing the information on the form.
Before the court awards the money, it considers certain factors as mentioned below:
- Whether you are financially incapable of raising the necessary fee to be spent,
- Whether the divorce would be challenged bitterly and would, therefore, most likely need thorough preparation,
- Whether your high-earning spouse is financially capable of paying the fee,
- The level of financial disparity between you and your spouse, which includes abilities and proof of marital assets, including income-producing assets and investments, and
- Your financial needs and those of your spouse.
Note that there are situations where the court can order an award of a need-based legal fee even if a party has enough money to pay their fees. However, you have to consult with a skilled lawyer from San Diego Family Attorney to find out if this scenario applies to your case.
When the judges award legal fees, the ordered amount can be paid at once or over a while. In case your spouse is capable of paying it all at once, the payment is made immediately. However, if the money is being deducted from your spouse’s income and not from the money sitting in the bank, the award may be paid monthly at a fixed rate over time. Most attorneys agree to this arrangement.
An interest of 10% is charged on unpaid legal fees from the time that payment becomes due and is not paid. Where the legal fees are to be cleared over time, make sure you request the judge to include an acceleration clause in the award order. This clause provides that if the payment is missed or delayed for more than five days, the balance becomes due immediately.
How Do You Request for Need-Based Legal Fees?
Family court judges are overwhelmed every day by the cases they get. Due to their busy schedules and workload, they might not wholly conduct the needed analysis in each case. Thus, when you ask for the legal fee, you have to make sure the request is made right.
Use the right forms of application
You can ask for legal fees by filling out and filing Request for Order form (form FL-300). In this form, you can also quote the specific amount you want the judges to award you. It would help if you let an expert family law lawyer do the Request filing for you together with the supporting, necessary declarations. If that’s not the case, ensure you don’t leave out any required declarations when filing your request. This includes an Income and Expense Declaration. This declaration provides the judges with your financial details.
If your written declaration does not accompany your Request for Order form when filing, you have to complete forms FL-319, FL-158, and FL-157. Many lawyers don’t include form FL-157. However, in this case, it is important to file this form with the applicable sections correctly filled out.
The Income and Expense Declaration form is important for legal fee request success
Even if you are approximating your financial information, try to be accurate. Review your payslips and bank statements and correctly calculate all your expenses and income. Additionally, make sure you attach evidence of income, be it a payslip, or a statement of the profit and loss you have incurred.
For instance, there is a question on the form that asks you to approximate your spouse’s income. Here, you have to attach detailed information explaining the reasons that support your estimation. You can also attach your spouse’s payslips and other documents that show proof. Note that you can’t attach tax returns as evidence. However, you must have them during the hearing.
Always remember that you should never lie when it comes to declaring your income and expenses. Also, do not, even deliberately, underestimate, or overestimate amounts. Skilled family law lawyers and judges can easily identify inconsistencies in the details you provided, and then you will have to be cross-examined, so the truth is unveiled. Once you damage your trustworthiness with the judges, it may be tough to repair.
Family Law Sanctions
You can also get the legal fee from your partner through family law sanctions (Family Code 271). This method is not need-based but behavior-based. In case your partner or ex-partner behave in a wrong way during litigation in that he/she frustrates any effort to settle, you can request the judges to sanction him or her. In most cases, in California, refusal to disclose financial information is the reason spouses get sanctioned.
We have other Family Codes that allow sanctions, for instance, when a spouse makes false allegations of child abuse for him/her to get an advantage of child custody after divorce (Family Code 3027.1). You should consult your family law lawyer and find out what family law sanction applies to your situation.
What About in Fault-Based Situations?
Since California is a no-fault state, generally, courts won’t automatically order your spouse to pay for your legal fees when you file a divorce on the grounds of marital misconduct. For instance, in case your partner committed adultery, and you filed for divorce based on fault, a judge will most likely not order your partner to pay your legal fees as punishment. However, in case your partner refuses to cooperate or files unnecessary motions in an attempt to slow down the divorce litigation, other courts will order a spouse to pay for your legal fee as compensation for all this. Generally, your partner won’t have to pay for the entire process, but he/she may have to pay for court appearances that were caused by his/her bad behavior.
Are There Other Options?
In case there is no possibility that the judges will make your partner pay your legal fees, you might still have a few other options. However, you have to consult your lawyer first to see if they are appropriate. For instance, you can cash in your retirement account. The drawback here is that the account may be considered a marital asset if you contributed to it in the course of your marriage. This means your spouse would have a share of the retirement account, and it may be difficult to use it.
The same is true with the liquidation of certain marital property. Your partner may object to it, but if the court has authorized it, it will just deduct the cash from your portion of assets after the divorce. Another option is borrowing money from members of your family or securing a loan in your name, which you would be responsible for repaying once the divorce is finalized.
You Can Also Get Professional Funding
In case there is completely no way out for you to pay your legal fees and other legal costs, you may consult your attorney about approaching private investors that may have the will to pay for your divorce and in exchange, you will give them a share of the property you receive after the litigation. You and your lawyer may be able to create a payment plan, but you will have to clear about the expenses of the experts preparing your case.
Can You Request Legal Fees in the Middle of a Divorce Process?
Imagine this scenario: you began the divorce process by representing yourself, but things got financially tough in the course of the divorce, and you decide you cannot go on representing yourself anymore. Alternatively, you have decided to hire another attorney since the current one is not a good match and you have to pay a retainer to get the new attorney. If the second scenario is the case, you can use the legal fees awarded to you to retain new counsel in the middle of the case.
However, if you have been representing yourself, you have the option of filing Request For Order or a motion under Family Code 2031 requesting for the legal fee you require to hire an attorney. This is a good option to go with if you have already selected the new attorney, and they are willing to replace your first attorney or filing an application for the attorney’s fee for you without paying him/ her up front.
We advise that, when filing your declaration, you name the attorney. Also, mention his or her willingness to take on your case as well as the terms and conditions of the engagement. You may also declare your offer that the amount the court will order your spouse to pay won’t pass through you, but it will go directly to the new attorney. In most cases, an attorney will give you a declaration that confirms his or her availability to represent you, which you must attach to your motion papers when you file.
In Summary
If you need to file for divorce and can afford to pay legal fees, the court will most likely not order your spouse to pay for your legal fees. On the other hand, if you want to file for dissolution but cannot afford a lawyer, you may still hire the lawyer of your choice and have your spouse pay the legal fees.
Requesting for attorney fees is among the initial requests a spouse can make during divorce proceedings. Even if you don’t do it at the beginning, you can still request it at any time in the course of the divorce process. However, having an experienced family attorney from San Diego Family Law Attorney makes a huge difference; it improves the chances of your legal fees being paid by the higher earner.
Find an Experienced Family Law Attorney Near Me
If you need to learn more about who pays for the legal fees in a divorce, the circumstances under which the fee is paid, and how to request the fee, call the San Diego Family Law Attorney at 619-610-7425. You will get to speak to an experienced divorce attorney who understands all matters about divorce. We serve the San Diego County area, and help clients that are seeking help on all matters of family law.
