You have decided you want to end your marriage and you are wondering how to pay for an attorney to represent you in your case. Frequently asked questions about attorney fees in divorce cases California include:
- Can I use a joint checking account or community property account to pay for my attorney fees in a divorce case in California?
- Can I use my own separate account to pay for attorney fees in my divorce?
- Will my spouse have to pay my attorney fees in my divorce in California?
- When do I ask the court for an order requiring my spouse to pay for my lawyer?
- Will I have to pay for my attorney fees and pay my spouse’s attorney fees, too?
Community funds, including a joint checking account or savings account can be used to pay attorney fees and necessities of life during the pendency of a divorce case. It is important, however, to keep careful accounting of all community funds used for attorney fees or any purpose, because Family Code section 721 requires a party who has utilized community assets to account to the other party about how such assets were used.
A separate property account may also be used to pay attorney fees and the party who owns such account may also be required to pay the attorney fees of the other party. Family Code section 2032 allows for the attorney fees of spouse who is in an inferior financial position to be paid from the separate income or assets of a spouse in a superior financial position. Automatic temporary restraining orders (ATROs) go into effect when a Petition for Dissolution (divorce) has been filed. The ATROs prohibit the use or transfer of community and separate assets for most purposes, with the exception of attorney fees. In other words, payment of attorney fees for family law cases from community or separate funds is permitted in California without first obtaining the permission of the other party or permission from the court. However, any party using assets for attorney fees or any other purpose after a divorce case has begun should be prepared to account to the other party as to when and how such funds were used.
If a Petition for dissolution has been filed with the court, then you will file a Request for Order (RFO) asking the court to make orders requiring your spouse to pay your attorney fees for your divorce case. The court will consider the attorney fees you need to retain an attorney and the attorney fees required to have representation throughout the pendency of your divorce case.
Family Code sections 2030 states that each party shall have equal access to legal representation in a divorce, legal separation and annulment proceeding, and this means that one spouse may be required to pay the attorney fees of the other spouse. Income and Expense Declarations (FL-150) must be filed when seeking attorney fees in a family law case, as well as a declaration that addresses the factors in Family Code section 4320. Those factors include the income, earning capacity, assets, and debts of each party; the age and health of each party; duration of the marriage; and, the ability of a party to be gainfully employed without unduly interfering with the interests of the dependent children in the care of that party. While taking into consideration the factors in Family Code section 4320, the court will determine if one spouse is in the position to pay his or her attorney fees in addition to those of the other party. Also, in circumstances where one parent has custody of the parties’ minor children, the non-custodial parent who is in a financial position to pay his or her own fees and those of the other party, may be ordered to pay both.
Divorce will likely place a financial strain on both parties and the family courts will do their best to ensure that both parties can be represented and that such costs are allocated as equitably as possible given the parties’ respective financial positions.
