Will I Have to Pay My Ex's Attorney's Fees and Costs?

A common theme in divorce is the award of attorney’s fees and costs. It is no mystery that any legal actions can become expensive relatively quickly. This is especially true in custody battles and divorces where, sometimes, the process can become a lengthy one. The legal fees add up and it is not uncommon for individuals to question how they can afford to continue paying their legal fees even though they need representation to protect their legal interests. One solution is filing a motion to have the other spouse/parent pay his/her attorney’s fees and costs. But how?

An award of attorney’s fees and costs may be granted based on (1) the relative circumstances of the parties; and/or (2) the conduct of the parties’ and/or their attorney that frustrates potential settlement, including any bad faith actions. Family Code Section 2030(a) states that “in a proceeding for dissolution of marriage…the court shall ensure that each party has access to legal representation to preserve each party’s rights by ordering, if necessary based on the income and needs assessments, one party … to pay to the other party, or to the other party’s attorney, whatever amount is reasonably necessary for attorney’s fees and for the cost of maintaining or defending the proceeding during the pendency of the proceeding.” The Code goes on to state that “if the findings demonstrate disparity in access and ability to pay, the court shall make an order awarding attorney’s fees and costs.” Therefore, if one spouse/parent makes a significant amount more than the other party, an attorney’s fee award may be properly made. However, it is important to note that this is only where the disparity in income in significant. The court does not take a motion for attorney’s fees lightly, and as such, a justifiable need for the other party to contribute to one’s fees and costs must be adequately demonstrated. However, financial need is not the only way to seek assistance from the other party with one’s fees.

Another way is based upon the other party’s actions surrounding the pending matter. Family Code Section 271 provides that “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 attorney’s fee award on this basis is a sanction for a party, or his/her attorney’s “bad” behavior. The Code goes on to state that “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.” Therefore, even if the party seeking an award of attorney’s fees and costs can afford to pay his/her own legal fees, if the other party is acting in a manner so as to drive up the costs in the matter, the court may appropriately order him/her to contribute to the seeking party’s fees. Many times, such bad faith behavior/actions include a party’s refusal to comply with discovery requests, refusal to respond to settlement offers and/or failure to comply with court orders.

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 40 years of combined experience we can help you to ensure that you and the child’s best interests are protected.