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Broad Discretion in Awarding Attorney Fees “No Longer Exists”

A recently decided California case, In re Marriage of Morton (2018), explains the historical progression of the discretionary authority the trial courts have had in awarding attorney fees in dissolution of marriage cases. Family Code §2030 controls attorney fee awards in dissolution of marriage cases.

When Family Code §2030 was first enacted in 1993, it used discretionary language to describe the court’s authority in awarding attorney fees. At stated in the statute, the court “may order” attorney fees in certain situations. Family Code §2030 was later amended in 2004. The legislature changed the discretionary term “may” to the mandatory term “shall”. The legislature again amended Family Code §2030 in 2010, this time to include the phrases “the court shall make findings” and “the court shall make an order awarding attorney fees and costs” if those findings demonstrate certain conditions.

Accordingly, the current version of Family Code §2030 directs the court unequivocally as to its duties when a request for attorney fees and costs is made. Family Code §2030 (a)(2) states “the court shall make findings on whether an award of attorney’s fees and costs under this section is appropriate, whether there is a disparity in access to funds to retain counsel, and whether one party is able to pay for legal representation of both parties. If the findings demonstrate disparity in access and ability to pay, the court shall make an order awarding attorney’s fees and costs.” (Emphasis added.)

The textual changes made by the legislature demonstrate that the discretionary authority of the trial courts in awarding attorney fees is not as broad as it once was. The Morton court tells us that today “the ‘broad discretion’ referred to in judicial decisions discussing the version of [Family Code section] 2030 predating the 2004 and 2010 amendments no longer exists.” Further, Morton explains that “it is no longer accurate to refer to a trial court’s ‘broad discretion’ when describing a trial court’s responsibilities under [Family Code] §2030 as currently in effect.” Morton has clarified that the trial court’s discretion in awarding attorney fees under Family Code §2030 has significantly narrowed.

What does this mean moving forward? We should expect to see the courts awarding attorney fees in accordance with Family Code §2030 ’s mandatory language, and no longer using broad discretion in such decisions. This will apply to both general attorney fee awards and pendent lite attorney fee awards.

For more information on how attorney fees can impact your case, please see our article from June 2015: Will I Have to Pay my Ex’s Attorney’s Fees and Costs?

Here at Mello & Pickering, LLP we can help develop a strong case for you as we have extensive experience in both defending against and seeking an attorney’s fee motion. With our 35+ years combined experience we can help you to ensure that you and your child’s best interests are protected.

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