Chad Ochocinco and Wife Divorcing - Who Should Pay the Attorney Fees?

Miami Dolphins Wide Receiver, Chad Ochocinco and his wife are going through a divorce. Chad’s Wife, Evelyn Lozado, has requested that Chad pay her attorney fees and costs. He has refused, citing to a prenuptial agreement which states that each party is to be responsible for his/her own attorney fees and costs. If Chad is correct and the prenuptial agreement does require each party to pay their own fees, he will likely save himself from having to pay his wife’s attorney fees.

In California divorce cases, there are two ways to get your attorney fees paid by the other party. The first is based on the need of one party and the ability of the other party to pay. If one party has a greater ability to pay the attorney fees and costs of both parties in the matter and the court finds that there is a disparity in access to funds, the court MUST order that party to pay the reasonable attorney fees and costs of the other party in order to ensure that he/she has access to legal representation to adequately defend against and/or present his/her case. See California Family Code §2030. The purpose of this section is to provide parity so that, for example, a stay at home mother with no access to funds, can be on equal footing with her husband, who has access to significant funds and earnings, in order to litigate the case.

The other way to obtain payment of attorney fees and costs in a family law matter is pursuant to California Family Code §271, which provides that the court may award attorney fees and costs to one party where the conduct of the other 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. An award of attorney's fees and costs pursuant to this section is in the nature of a sanction. Therefore, when one party behaves in such a way as to unnecessarily drive up the costs of the case, the other party has a good argument that the bad behaving party should pay attorney fees and costs in the form of a sanction.

Even if Chad Ochocinco and his Wife do have a prenuptial agreement stating that they each pay their own attorney fees and costs, it is likely that if one parties’ behavior frustrated settlement and drove up the cost of litigation unnecessarily by failing to cooperate, he/she could be ordered to pay the attorney fees and costs of the other party, as a sanction.

At Mello & Pickering, LLP we understand that in many cases there is a large disparity in access to funds which would otherwise prevent one party from obtaining adequate legal representation. Fortunately, California law provides a remedy for this problem. Contact us to schedule your free 20 minute consultation and we can discuss your options with regard to litigating your case when you are in need of an attorney fee award.