A question that often arises in a divorce is whether one spouse has to pay the other spouse’s attorney’s fees, and like many areas of the law, this legal question does not have an easy yes or no answer. This article will talk about how the process works in determining whether the wife has to pay the attorney fees or whether the husband has to pay the wife’s attorney fees or whether each party pays their own.
Family Code 2030
You can read the California Family Code Section 2020 that talks about this question here: https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?sectionNum=2030.&lawCode=FAM
Each party needs to have equal access to representation
One key part of this law states that the court should ensure that each party has equal access to representation. To accomplish this goal, the court can order one party to pay the other party or the other’s party’s attorney.
What does “equal access to representation” mean?
A legal case from 2009, known as Alan S. v Superior Court of Orange County, helps explain what “equal access to representation” means. You can read the full opinion here: https://scholar.google.com/scholar_case?case=9789715232219912999&q=divorce+attorney+fees+alan+s.+&hl=en&as_sdt=6,45
The Alan S. case clarified that a common misconception is that the purpose of Family Code 2030 is to redistribute money from the greater income party to the lesser income party. In other words, some people incorrectly believe that this law is in place to make the money “fair” by forcing the richer party to pay the fees of the poorer party. The Alan S. case clearly explains that equalizing disparate incomes is not the purpose. The purpose is to equalize access to legal representation.
The idea is that both sides should have the opportunity to retain counsel, not just the one with the greater financial strength. In fact, the Court in this case was quite clear on that point, and even italicized the take-away message of the case with this explanation: “The whole point of this case, after all, is that each side should have an equal opportunity for legal representation in the upcoming child custody hearing.”
Does the party with greater financial resources always have to pay for the other spouse’s legal fees?
Another common misconception is that the party that is wealthier always has to poay for the other spouse’s legal fees. That is not the rule, as the decision turns on access to legal representation and not just the difference in incomes between the two parties. For example, in the Alan S. case, the lower court’s ruling that Alan S. had to pay his wife’s attorney fees was reversed because the court reviewed the circumstances and concluded that the equal opportunity standard in this instance did not justify an attorney fee award.
How can you find out whether one spouse will have to pay the other spouse’s attorney’s fees in your divorce?
If you have questions about paying a spouse’s attorney fees, please contact us at the Law Office of David Knecht. We have extensive experience in all aspects of family law and can answer your questions. Contact us at 707-451-4502 for more information.
