TOPIC FOR JUNE'S ARTICLE:
"But I Ain't Got No Kind of Money, Honey:"
Welcome to our new page for Family Law Articles. This month's
article explains successful strategies that you can use to obtain the
money necessary to hire an attorney to represent you in a divorce or
other family law matter.
Given the fact that June
is traditionally the month for weddings, we thought that it
is fitting to have a family law article. This may not be romantic, but
neither are the divorce statistics which tell us that within three years, more
than half of these marriages will end up in divorce. This is a very
sobering fact that everyone should be aware of.
We get calls all
the time from people who lack funds to hire a lawyer. Many tell us that
their ex-spouse or soon to be ex-spouse could easily afford an attorney because
they either make very good money or have property.
Usually it is
through no fault of their own that these people don't have the funds to hire
their own lawyer. Either they are out of work, never worked or lack the skills
necessary to earn a comparable wage with the other party or they are
spending all they have available just raising their kids. Obviously this
situation is not fair.
Many times
the wealthier party uses that financial inequity to prevent their spouse from
being treated fairly. If they treated their spouse as unpaid housekeepers
and nannies during the marriage, surely they cannot expect to be treated any
better in divorce.
While this
can create a very uneven playing field for the parties. This law helps level the
playing field by forcing the wealthier party to pay for the legal expenses of
the not so wealthy party. However, it cannot manufacture money where none
exists. So keep that in mind, when you read this section.
Let's examine the
actual pertinent section of the Family Code that allows the Court to have the
other party advance funds for you to hire your own lawyer.
FAMILY CODE SECTION §2030 states that:
"(a) During the pendency of a proceeding for dissolution
of marriage, for nullity of marriage, or for legal separation of the parties,
the court may, upon (1) determining an ability to pay and (2) consideration of
the respective incomes and needs of the parties in order to ensure that each
party has access to legal representation to preserve all of the party's rights,
order any party, except a governmental entity, to pay the amount reasonably
necessary for attorney's fees and for the cost of maintaining or defending the
proceeding. From time to time and before entry of judgment, the court may
augment or modify the original award for attorney's fees and costs as may be
reasonably necessary for the prosecution or defense of the proceeding or any
proceeding related thereto, including after any appeal has been concluded.
(b) Attorney's fees and costs within this section may be
awarded for legal services rendered or costs incurred before or after the
commencement of the proceeding.
(c) For services rendered or costs incurred after entry of
judgment, the court may award the attorney's fees and costs reasonably necessary
to maintain or defend any subsequent proceeding, and may augment or modify an
award so made, including after an appeal has been concluded.
(d) Any order requiring a party who is not the spouse of
another party to the proceeding to pay attorney's fees or costs shall be limited
to an amount reasonably necessary to maintain or defend the action on the issues
relating to that party.
What does this
mean for you? It means if you are or were married to someone and are
seeking to divorce or nullify that marriage, or want to legally separate from
that person, you may apply to the Court for relief under this statute. Whether
or not you originally filed the case is immaterial.
The only
requirement is that you file a Motion or Order to Show Cause asking the Court to
make the other party give you money to hire a lawyer.
The Court will set
a hearing and it will examine each parties "respective income"
and their respective "needs." If the Court determines
that there is a "need" and the other party has the
"ability to pay," then the Court will order the other side to
advance a sum of money for you to pay to your lawyer. This money can come from
any source, including their separate property. However, it does not create
wealth where none exists.
It also means that
you can recover any costs you incurred before, during and after you file an
action or response. It will even cover post judgment modifications of the
judgment. For example this would cover modifications of support or for obtaining
or extending restraining orders, where necessary.
It even provides
that someone who is not a spouse of the other party may also have to pay to
cover your reasonable attorneys fees. So if you need to file a paternity suit
against someone who is wealthier than you, you may be able to get them to pay
for your lawyer. Although the rules relating to paternity cases are somewhat
different that the cases based on the parties being married.
As we will see in
the next section, even if you have enough funds to afford a lawyer, that
doesn't prevent the court from having the other party pay for your attorneys
fees and costs.
Now let's examine
the actual standard that the Court must apply in determining whether or not to
award attorneys fees. The Court must apply the standards set forth in Family
Code Section §2032, which provides in pertinent part:
FAMILY CODE SECTION §2032 states that:
(a) The court may make an award of attorney's fees and
costs under Section 2030 or 2031 where the making of the award, and the amount
of the award, are just and reasonable under the relative circumstances of the
respective parties.
(b) In determining what is just and reasonable under
the relative circumstances, the court shall take into consideration the need for
the award to enable each party, to the extent practical, to have sufficient
financial resources to present the party's case adequately, taking into
consideration, to the extent relevant, the circumstances of the respective
parties described in Section 4320. The fact that the party requesting an award
of attorney's fees and costs has resources from which the party could pay the
party's own attorney's fees and costs is not itself a bar to an order that the
other party pay part or all of the fees and costs requested. Financial resources
are only one factor for the court to consider in determining how to apportion
the overall cost of the litigation equitably between the parties under their
relative circumstances.
(c) The court may order payment of an award of
attorney's fees and costs from any type of property, whether community or
separate, principal or income.
(d) Either party may, at any time before the hearing of
the cause on the merits, on noticed motion, request the court to make a finding
that the case involves complex or substantial issues of fact or law related to
property rights, visitation, custody, or support. Upon that finding, the court
may in its discretion direct the implementation of a case management plan for
the purpose of allocating attorney's fees, court costs, expert fees, and
consultant fees equitably between the parties. The case management plan shall
focus on specific, designated issues. The plan may provide for the allocation of
separate or community assets, security against these assets, and for payments
from income or anticipated income of either party for the purpose described in
this subdivision and for the benefit of one or both parties. Payments shall be
authorized only on agreement of the parties or, in the absence thereof, by court
order. The court may order that a referee be appointed pursuant to Section 639
of the Code of Civil Procedure to oversee the case management plan.
It should be
apparent that the Court has tremendous latitude in awarding Attorneys fees and
costs. The trick is to find an attorney who is willing to help you. Not
every lawyer is going to be willing to help you get the Court to force the other
party to pay for your lawyer. These code sections are very helpful for people
who are struggling financially and facing a divorce.
We have been very
successful in getting Courts to grant our motions based on this code section.
While that is not to say that we are 100% successful, we have been successful
most of the time. We are very proud of being able to do this because it means more people are
able to properly defend themselves in Court. If you feel that this section can
be of benefit to you, why not give us a call and set up a no obligation
interview. After all you have nothing to lose and everything to gain.
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