A level playing field. That is what the legislature had in mind when it came to attorneys’ fees in family law cases. Each party has the right to legal representation. And since the monies from the marriage are community property anyway, the working spouse in a single income family should not be permitted an unfair advantage over the non-working spouse.
Attorneys’ fees are generally awarded based upon need and ability to pay. Most likely both sides will “need” an attorney, so the real issue is which spouse has the ability to pay. In a one-income household, it is not surprising that the working spouse is likely to be saddled with the attorneys’ fees for both parties. When I represent the non-working spouse, I usually call the attorney representing the other side right away and ask how much the working spouse is going to contribute for fees. If we cannot reach a resolution, then court intervention is required.
In cases where the parties are cash poor, it is sometimes possible to have the judge order assets of the marriage sold so that both sides can have legal representation. Unfortunately in some cases, the working spouse does not have the ability to pay. This situation makes it very difficult for everyone, including the court. If a party truly does not have the ability to pay, then it can be an abuse of discretion for a judge to order that party to pay attorneys’ fees.
Attorneys’ fees are also awarded in family law case as a sanction for a party who frustrates settlement efforts or fails to reduce the costs of litigation through cooperative conduct. Unlike other civil cases where there is no “obligation” for the parties to cooperate, in family law, there is such an obligation. And when one side has no interest in settlement and acts to make things as difficult as possible for the other spouse, the spouse acting difficult may very well get saddled with having to pay attorneys’ fees as a sanction.
For all of your family law needs, contact the Law Offices of Richard A. Marcus 661-257-8877.