Attorney fees awards in California Family Law proceedings

Attorney fees awards in California Family Law proceedings

Many parties involved in dissolution (divorce) litigation in California are not aware that the Courts have the power to order that the other party to the proceeding pay a reasonable amount to allow a party who is representing themselves, known in California as “In Pro Per” to retain an attorney in a timely manner before proceedings in the matter go forward. The relevant statutes are contained in Chapter 3.5 of the California Family Code, sections 2030 through 2034. These statutes can be very useful for a party who does not presently have the funds to retain an attorney and has a pending trial or hearing.

In other words if a prospective client who is currently representing themselves without an attorney wishes to retain an attorney they can ask the Court to order the other party to pay so that they can retain an attorney before any trial or hearing. See California Family Code § 2030(b).

And the Court has the authority to make an attorney fees award without notice by an oral motion at the time of a hearing on the cause of the merits. See California Family Code § 2031(b)(1), and at any time before entry of judgment against a party whose default has been entered pursuant to Section 585 or 586 of the Code of Civil Procedure. The court shall rule on any motion made pursuant to this subdivision within 15 days and prior to the entry of any judgment. See California Family Code § 2031(b)(2).

The court has power to impose additional fees than those requested if it determines that the adverse party failed to cooperate in family law proceedings. In re Marriage of Quay 18 Cal. App.4th 961, 970 (1993).

The family law judge has discretion to create a “judicial lien” on community or separate property in order to secure payment of section 2030 fees. See California Family Code § 2032[c].

The use of this procedure allows a party who is currently representing themselves without an attorney to “level the playing field”.  And the procedure allows them to make such a request by an oral motion at the time of any trial or hearing.  This is very advantageous to many family law litigants as many of them wish to retain an attorney but cannot afford to pay the thousands of dollars most attorneys charge as an upfront retainer.

In fact the California Supreme Court has stated that it is the public policy in California that both spouses have the ability to obtain effective legal representation.

California’s public policy in favor of expeditious and final resolution of marital dissolution actions is best accomplished by providing at the outset of litigation, consistent with the financial circumstances of the parties, a parity between spouses in their ability to obtain effective legal representation. Droeger v. Friedman, Sloan & Ross 54 Cal.3d 26, 41, fn. 12 (1991).

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