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Attorney’s Fees in Family Law

Posted by attorney Carina Castaneda

All too often in family law parties “stonewall" one another. They make frivolous request. They inundate the other side with faxes, emails, messages, letters, useless interrogatories, and more. They refuse to accept a reasonable settlement offer.

What can a spouse do? California Family Code, Section 271 basically states that if “the other side doesn’t play ball or play nice," the court can make them pay the other side’s attorney’s fees. It applies even to a pro per spouse.

The text of Section 271 (a): Notwithstanding any other provision of this code, 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.

As I already indicated in my prior article about attorney’s fees in family law, the court seeks to ensure that each party has equal access to legal representation to each party’s rights. Family Code 2030 is the conduit for such an award.

A party may be entitled to attorney’s fees in an action to enforce an award of child and/or spousal support. This means that a party who fails to pay a court ordered child or spousal support may be ordered to pay the attorney’s fees for the other party in an enforcement action.

A party may be entitled to attorney’s fees where the opposing party misuses or abuses the discovery process. For example, a misuse of the discovery process can occur where a party fails to confer with the opposing party to resolve a discovery dispute, makes an evasive response to a discovery request or uses a discovery method to harass, annoy or burden the opposing party.

Discovery laws in relation to awarding of attorney’s fees in discovery misconduct can be complicated. The assistance of an experienced family law litigation attorney is often helpful to ensure that you comply with discovery laws as well as to protect your rights throughout the discovery process.

In my office, I understand that legal representation can be costly and are prepared to help you to protect your entitlement legal fees as well as defend you against an unlawful claim to attorney’s fees from the opposing party.

Can that sanction be for 100% of the innocent spouse’s fees? That usually depends on the violating spouse’s ability to pay and whether the sanctions amount would cause an undue hardship. This statute still intends to be fair to both sides by inflicting a punishment but not to the extent that it would cripple one party.

California Code of Civil Procedure section 128.7 allows a spouse to seek attorney’s fees against the other spouses’ lawyer when that lawyer files a motion or other document with the Court that is completely frivolous and without merit. Section 128.7 has specific provisions that limit its effect to most egregious of cases and should not be used on every case where there is a disagreement. However, this can act as a powerful deterrent.

Using sanctions to stop frivolous acts by an opposing party must be used carefully and an experienced attorney should be able to determine if it is necessary.

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