Who Pays for the Legal Fees in a Divorce?

Divorce procedures are complex, and legal assistance is crucial. With emotions running high during a divorce, it is critical to have a skilled and knowledgeable attorney to handle all the negotiations and court proceedings.

What if you are earning less than your spouse or you have no income, who pays for the legal fees in a divorce? The issue of legal fees in divorce proceedings is not merely having each spouse pay for their attorney. As you prepare for the process, you need to understand who is responsible for legal fees in both the divorce and post-divorce matters.

If you cannot afford an attorney, you have the option to request for legal fees from your spouse. Asking for the fees is often among the first requests made in divorce cases. Even if you do not ask at the beginning, you can file a petition at any time during the divorce process. The difference is in having a seasoned family law attorney to represent you.

At San Diego Divorce Attorney, we specialize in family law, and we are highly competent in divorce procedures. We have the requisite skills to file a request for you to be awarded legal fees in any Family Court within San Diego, CA. We will expertly fill out all the necessary documentation, represent you passionately and possibly convince the judge to award your legal fees in full.

California Divorce Laws in Brief

Section 2300 of the Family Code governs divorce cases in California. There are fundamental laws and critical requirements that guide the process. 

1. Length of residency

To file for divorce in California, either you or your spouse must have resided in California for at least six months and at least three months within the county where you file your divorce. However, a waiver of the restriction on residency periods is possible for same-sex couples who live in a state where same-sex divorce is not recognized. In such divorce cases, orders made by California divorce courts may not be enforceable in those states. If you do not meet the six-month or three-month requirement on residency, you may file for a legal separation and amend the paperwork once you attain the required length of residency.

2. Waiting period

Your divorce decree can only be finalized six months after your spouse is provided with the divorce papers or after their first court appearance, whichever comes first. If the judge finds a reasonable possibility of your reconciliation, he or she may pause your divorce proceedings for not more than thirty days.

3. Grounds for divorce

A ground for divorce is a legal reason for the court to grant you a divorce.  Divorce laws in California rest on the "no-fault" concept. This concept means that you do not need to prove that your spouse is the main reason for your divorce. You only need to cite one of the two acceptable grounds for divorce: incurable insanity or irreconcilable differences.  Irreconcilable differences mean that you cannot get along with your spouse, and there is no hope of resolving your issues. 

4. Court fees

Filing the initial divorce paperwork requires paying some fees. The exact amount depends on the county where you open the divorce case. If you cannot afford to pay, the court may grant you a waiver on the fees.

Paying the Legal Fees in Your Divorce

It is vital to have an attorney represent you to preserve and maintain your rights. In family law, hiring an attorney requires some initial payment either by a security deposit, a retainer fee or a flat fee. Away from family law, your attorney can agree to a contingency fee where you pay a fixed percentage of the final monetary recovery of your case.  If you lose, you pay the costs but do not pay any attorney’s fees. However, family law prohibits California attorneys from entering into contingency fee agreements with their clients. Therefore, you must pay a certain amount to your attorney at the start of your case.

What if you cannot afford the legal fees?

If you are unable to pay for a lawyer, the California Family Code allows the judge to order your spouse to pay you or your lawyer a certain amount to cover your legal representation fees. This order is known as the need-based fee award. The purpose is to maintain the right of every person to have legal representation.

The Need-based Fee Award

If you are financially disadvantaged, your legal fees can still be paid at or near the beginning of the case. Section 2030 to 2032 of the Family Code instructs judicial officers to make orders for need-based attorney fees if there is a disparity between spouses in access to finances for legal representation. This public policy on ensuring equal access to legal representation is robust. The rationale is to level the playing field and ensure that no spouse has a legal advantage over the other due to inequality in income. The judges must ensure that you get equal representation to that of your higher earning spouse.

When deciding on legal fees, the judges must review your financial circumstances and make specific findings whether:

• There is inequality in accessing funds to retain an attorney
• Awarding the legal fees is appropriate
• Your spouse can pay for legal services for both your attorneys

How Judges Make Decisions to Award Fees

Section 2030 of the California Family Code requires judicial officers to carefully look at the entire financial picture before deciding to award you legal fees. The ultimate decision will depend on an analysis of the economic disparity between you and your spouse. The audit includes evidence of all assets and abilities such as income-generating properties and investments. In some cases, you may be awarded fees even when you can afford to pay for yourself. However, you need to consult your attorney to evaluate whether your case qualifies for such an award.

The need-based fees are discretionary. However, the judge is obligated to analyze whether an award for need-based attorney fees is reasonable and just based on the individual circumstances of each party involved. The law expressly forbids judicial officers from looking at the financial picture casually and merely filling out a form. They must analyze every aspect and make a justifiable decision.

Judges also exercise their discretion to decide on the amount. It is critical that you provide the judge with all the correct information because they have much liberty in determining the figures. You must pay close attention to all forms and declarations, especially the Income and Expense Declaration. You may be denied a fee award due to a missing, inconsistent, or wrongly filed declaration. The upside is that in case of a financial disparity, the judicial officers are obligated at a minimum to order some form of need-based fees for you.

To receive a need-based fee award in a divorce, you do not have to be the winner, also known as the prevailing party. You only need to demonstrate that you are financially disadvantaged. However, in some situations, family law provides the prevailing party with attorney fees awards. For example, a prevailing party can use Section 3652 of the California Family Code to modify, terminate, or set aside a support order. Additionally, Section 6344 of the Family Code authorizes fees and costs to a prevailing party in cases involving domestic violence and restraining orders.

How to Ask for Your Attorney Fees

To seek legal fees, you have to request a court hearing where you will explain why you need your attorney’s fees paid. Often, judicial officers in Family Court are overwhelmed by a large number of cases and may not analyze the financial disparity with the necessary precision. Therefore, your request for legal fees must be done correctly and in the right forms.

The forms contain all the necessary information that the judge legally needs to make a decision. Ensure you complete filling out all the forms accurately. If you have a lawyer willing to help you, they may assist you in filling out all the paperwork even if you still have to file the documents by yourself.

To request a court hearing on your legal fees, follow the following steps:

1. Fill out the required court forms. In each form use the right case number appearing on your petition and your summons.

The forms include:

• Request for Order (Form FL-300): With this order, you may ask for a specific amount from the judicial officer. It is better if your attorney files your request on your behalf with all the necessary and supporting declarations.
• Request for Attorney’s Fees and Cost Attachment (Form FL-319)
• An Income and Expense Declaration (Form FL – 150): You do not need to submit this if you had filled one within the past three months, and the information is the same. This declaration provides judicial officers with all your financial information.
• Declaration for Attorney's Fees and Costs Attachment (Form FL-158). You can substitute this form with a personal testimony that includes all the information required in Form FL-158.
• Spousal or Partner Support Declaration Attachment (Form FL – 157). Most attorneys exclude form FL-157. However, you should fill out all the applicable sections and submit it if you are not attaching your Income and Expense Declaration to the Request for Order.

2. Take your forms for review.

Ask a family law facilitator to review your completed forms. They will check whether you filled out the forms correctly before you proceed with your request.

3. Make two or more copies of all the documents.

Make a minimum of two copies of all the forms you filled in step 1, including all attachments. The original is submitted in court; one copy is yours while another copy is for your spouse.

4.  File your documents with the clerk of the court and obtain your court date.

Submit the original forms and two copies to the court clerk in the court handling your divorce case. The clerk will keep the original then stamp ‘Filed' on the two copies and return them to you. A filing fee is required, but if you cannot afford it, you can ask for a waiver. The clerk will also indicate your court date on page 1 of the Request for Order (Form FL-300). Your hearing for the request will be on that date.

5. Serve your spouse with one copy of the request.

• Get a person aged 18 or older to serve your spouse with one copy of your request, and blank copies of Responsive Declaration to Request for Order (FL-320) and Income and Expense Declaration (FL-150).
• You can serve the papers by mail or in person. However, you cannot personally do the serving, whether in person or by mail.
• Service in person must be at least 16 court days before the hearing.
• Service by mail must be 16 court days before the hearing, and you must allow five calendar days of mailing.
• If you petitioned for the divorce, you are not permitted to serve the request by mail if your spouse has not received the Petition and Summons.
• Check the front of Form FL-300 for any additional documents that the court requires you to serve.

6. File proof of service.

Ask the person who served the papers to fill out a Proof of Service by Mail Form (FL-335), or a Proof of Personal Service Form (FL-330). File the form with the court. You can ask a family law facilitator at the court to review whether the form is correctly filled.

7. Attend your court hearing.

Attend the hearing and take copies of all your documents including your Proof of Service. After the hearing:

• If the judge decides in the hearing, he or she will sign an order. In some courts, the clerk prepares the order while in others, you have to do it yourself. If either party has an attorney, the attorney will be instructed to prepare the order.
• If you are the one preparing the order, you must fill out the Findings and Order After Hearing Form (FL-340) and an attachment with details about the ruling.
• Ask a family law facilitator to review your forms and ensure that they are correctly filled.
• If the judge does not decide at the hearing, they have to decide within 15 days from the day of the hearing. The court clerk will notify you after the judge makes an order. You can call the court after 15 days if they do not contact you.

Filing the Income & Expense Declaration

This declaration is critical if you are to succeed in your request for legal fees. It contains all the details the judge needs about your financial status. Here are guidelines on how to fill it out:

• Go through your pay stubs and bank statements, calculate your income and expenses correctly, and attach proof of your income. Such evidence may include a profit & loss statement or a paystub.
• The declaration requires you to estimate your spouse's income. When evaluating, attach a detailed explanation to support your estimates. If possible, attach documentary evidence.
• You are not allowed to attach tax returns to your declaration. However, you must have the tax returns at the hearing.
• You must be completely truthful when filling in the necessary information and be as accurate as possible in your estimates. You cannot overestimate or underestimate the figures. If any inconsistencies are detected, your spouse's lawyer and the judicial officers will cross-examine you to establish the truth. If your credibility is damaged, it will be challenging to repair.

Legal Fees From Family Law Sanctions

Under Family Code Section 271, you can get legal fees from your spouse as a sanction. This award is based on behavior and not need. The goal of the court is to settle divorce cases in the shortest time possible and at the lowest possible cost. Achieving this goal requires cooperation from you and your spouse. If your spouse is uncooperative, misbehaves, and delays or frustrates the settlement process, they are working against the goal of the court, and you may request the court to sanction them.

Causes of sanctions may include:

• Failure to disclose your financial information
• Making false allegations of child abuse to gain the upper hand during custody proceedings
• Filing frivolous documents or requests in court that have no relation to the case

Often, litigants are oblivious of the repercussions of frustrating legal actions. The order to pay attorney’s fees is a punishment to your spouse for their behavior. You have no guarantee that your spouse will be ordered to pay 100% of your legal fees. Such scenarios are determined on a case by case basis because the court does not aim at crippling your spouse financially.

Find a San Diego Divorce Lawyer Near Me

The divorce process can be physically and emotionally draining. Therefore, it is necessary to have an attorney that can fight for your interests, especially if you are the financially disadvantaged spouse. Being unable to afford legal fees is not a reason to waive your right to legal representation in your divorce. At San Diego Divorce Attorney, we have extensive experience in representing clients in divorce cases in and around San Diego. We have mastered the art of requesting legal fees from higher earning spouses. Call us at 858-529-5150, and we will do our best to have your legal fees possibly paid in full.