Divorce in California
Under the Californian Family Code, each party in a divorce case, legal separation or annulment proceeding has equal rights to access legal representation.
While affordable lawyers are available in California, attorney fees can sometimes create financial strain — so who ends up paying for them is an important consideration.
The question can add to the already complex nature of the financial consequences of a divorce. As with all legal rights and responsibilities, it’s important to be clear on these before you begin divorce proceedings.
Who pays the divorce attorney fees in California?
The general rule in California is that community funds can be used to pay attorney fees and necessities of life while the case is proceeding through the family court system.
While using a joint checking account or savings account to fund your legal costs is an acceptable practice, it’s important to keep good records of where the money is going. The Family Code requires that spouses account for the use of community assets and the failure to do so could result in legal challenges from the other spouse.
Some couples set up a separate account to pay and account for attorney fees. However, the owner of this account may be required to pay the attorney fees for both parties in the divorce.
Under the Family Code, the attorney fees of a spouse with an inferior financial position can legally be paid from the separate income or assets of a spouse in a superior financial position. To do so, a Request for Order (RFO) must be filed with the court, asking for an order requiring your spouse to pay your attorney fees during the divorce case.
Once the Petition for Dissolution has been filed with the courts, automatic temporary restraining orders (ATROs) prohibit the general use or transfer of community and separate assets. However, attorney fees are excluded from this order.
No permission is required of your spouse or the court to use funds from the marital estate to pay legal costs related to the divorce. The court will, however, pursue a fair dissolution of marriage, including when dividing marital assets.
The golden rule, therefore, is to keep good accounts that explain how and where any funds from the marital estate have been used. Your California divorce lawyer can explain in more detail how to protect your rights and manage your financial responsibilities as the divorce case progresses.
Can assets be divided at the start of a divorce?
The division of marital assets/debts is one of the main issues in almost every divorce proceeding. The family court seeks to help couples transition to self-sufficiency without financial hardship., including having equal rights to legal representation.
Bank accounts, investment accounts, property, IRAs, pensions, and other assets must be divided equally between both spouses before they go their separate ways in California.
Sometimes, where one spouse is at a financial disadvantage, the court will order the other spouse to pay an advance on the division of assets to be used to cover legal fees. In these cases, the disadvantaged spouse’s attorney fees are not paid by the other spouse — instead, a portion of the marital assets for the disadvantaged spouse is advanced and will be accounted for in the final division of assets.
In highly adversarial divorces, a financial advantage can become used against a spouse. If there are attempts to file frivolous motions or make false allegations or a blatant failure to negotiate in good faith, a judge can order a vexatious spouse to pay all the associated attorney fees (more about this below).
What financial information will the court consider when making orders?
California family law tries to create a reasonably level playing field in divorce litigation, which means that both spouses must have sufficient funding available for legal costs.
Consequently, before making needs-based orders about the payment of attorney fees, the following information will be taken into account:
- The respective financial positions of each spouse
- All sources of income for both spouses (earnings, community property, investments, etc.)
- The earning ability of each spouse
- The age and health of each spouse
- The outstanding debts for each spouse
- Whether either spouse has a new partner (if so, how much does that individual earn?)
- Good faith efforts to negotiate and find solutions
- Who has custody of any dependent children and the potential impact of decisions on them
- The length of the marriage
- Any other relevant factors
It’s worth noting that California is a no-fault divorce state. Judges will not make decisions about the payment of attorney fees based on behavior during the marriage — so, if one spouse committed adultery, this is irrelevant to the financial matters at hand.
My spouse makes more than me. Do I have to pay for his/her divorce lawyer?
When divorce papers are filed in California, an Income and Expense Declaration must be completed to seek a spouse’s payment of attorney fees. The information it contains will help the courts assess the validity of the claim.
Earning ability/income is just one aspect of a couple’s circumstances to be considered when making a judgment but if your spouse earns more than you, it is unlikely that you’ll be ordered to pay his/her attorney fees.
The court is interested in fair and reasonable settlements rather than penalizing one party or creating hardship. Unless unreasonable behavior or bad faith is demonstrated by one party, the main decision will be “needs-based”.
Extreme circumstances and bad faith during divorce
Apart from the “needs-based fee award” outlined above, another way for one spouse to end up paying for the attorney fees of the other spouse is if he/she exhibits behavior that goes against the common goal and the interests of the court.
Sometimes, if actions deliberately create adversarial situations or try to gain an unfair advantage, the court will introduce counter-measures to protect the disadvantaged spouse — or punitive steps to discourage such behavior from continuing.
Examples of “bad faith” behavior could be:
- Attempting to delay settlement (thereby increasing costs)
- Avoiding cooperating or negotiating
- Making false accusations against the other spouse
- Filing frivolous documents or motions
- Hiding financial information or assets
- Not filing certain documents
Bad faith can also work in reverse. The party asking for attorney fees to be paid by his/her spouse can be guilty of bad faith efforts in seeking to punish or disadvantage the other spouse.
If you have any financial issues during a divorce in California, the affordable lawyers at The Sands Law Group APLC can discuss your options. Contact us or call at 213-788-4412 today for a free 15-minute phone consultation about your case.