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Attorney
Fees & Legal Costs
Attorney fees and legal costs may be
awarded in a variety of circumstances and for a variety of
reasons in a divorce or family law matter. Such awards may be
given during the pending family law matter (similar to temporary
spousal support) and/or at the conclusion of the case.
Within the context of a divorce or family
law case, interim attorney fee awards serve the fundamental
purpose of equalizing the parties' litigation resources. In
other words, the court does not want one spouse (generally the
higher income earner and the one that had control over the money
and assets) to be able to outspend the other spouse.
Specifically, California law states that "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." That parity
often requires that the higher income earning spouse contribute
to the lower income earning spouse's attorney fees and legal
costs. This way, a "financially disadvantaged" spouse can
obtain legal representation.
This can even be done before hiring an
attorney. A spouse that lacks the financial ability to hire an
attorney may request, by him or herself, that the court order
the other spouse to pay a reasonable amount to allow him or her
to actually hire (called "retain") an attorney before the
proceedings even go forward. The court can even suspend the
divorce or family law action until the needy spouse gets the
funds through payment of the interim fee award to hire an
attorney on parity with the other spouse's representation.
The court can also modify or change a fee
award during a case. Specifically, California law provides that
"the court shall 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, including after any
appeal has been concluded."
The court's ability to do this includes any
proceedings even after judgment or appeal.
Similar to other interim orders, the
court's decision in large party is based on (1) the parties'
respective incomes and needs, and (2) any factors affecting the
parties' respective abilities to pay.
Also, the court can award attorney fees in
the interim regardless of what ultimately happens at trial.
Therefore, a need based award for attorney fees does not change
just because a spouse did not win at trial.
The rules are a bit different for domestic
violence prevention act orders as they are in cases where one
spouse is unreasonably causing the attorney fees and litigation
costs to increase.
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