PaulaPenny said:
In California, my brother is filing for divorce. He was told by his lawyer (from firm specializing in divorce) that should his wife (from whom he is divorcing) wishes to obtain her own lawyer, he will be responsible for her legal fees as well. Could this be accurate? How can this be? She was not working at the time but will be soon. Would this change matters? She was living in New York for short while but is now in California. Would this change matters?
Thanx for any info!
Paula
My response:
So, you're the "protective sister" and, let me guess, you've always hated your sister-in-law. You're my kind of gal, Paula !
Authority for the award of attorney fees, sanctions, and costs in family law proceedings is set forth in various provisions of the Family Code. In addition, attorney fees and costs provisions of the Civil Code and Code of Civil Procedure pertaining to the conduct of civil litigation generally may also apply to family law proceedings.
The primary purpose of an award of attorney fees and costs in a family law case is to provide each of the parties with an amount of money adequate to properly litigate the controversy. [In re Marriage of Huntington (1992) 10 Cal.App.4th 1513, 14 Cal.Rptr.2d 1] Public policy favors providing "a parity between spouses in their ability to obtain legal representation." [Re Marriage of Green (1989) 213 Cal.App.3d 14, 261 Cal.Rptr. 294] Besides providing for equal access to representation, an order awarding attorney fees and costs may also be imposed as a sanction for the purpose of discouraging conduct that frustrates settlement and thereby increases the cost of litigation.
To achieve these purposes, the Family Code contains several grants of authority to the courts in marital proceedings. Family Code § 2010(f) broadly confers jurisdiction "to inquire into and make orders that are appropriate" concerning the award of attorney fees and costs in marital termination proceedings.
Family Code §§ 2030 et seq. govern awards of fees and costs based on need in marital termination proceedings. As the principal authority for fee awards in marital termination proceedings, they are discussed throughout this chapter. Fam C § 2030(a) provides that during the pendency of a dissolution, nullity, or legal separation proceeding, the court may, after determining the parties’ needs and ability to pay, order any party except a governmental entity to pay the amount of attorney fees and costs reasonably necessary to enable another party to maintain or defend the proceeding. Furthermore, the court may augment or modify the original award for attorney fees and costs as may be reasonably necessary for the prosecution or defense of the proceeding, including any appeal.
Family Code §§ 270 et seq. apply to awards of fees and costs in all Family Code proceedings. Fam C § 271 authorizes the court to award fees and costs as a sanction for conduct by a party or attorney that frustrates the policy of promoting settlement and reducing the cost of litigation by encouraging cooperation.
Family Code § 1101 provides for an award of attorney fees and court costs in a proceeding brought to redress a breach of fiduciary duty. Where the breach is not in a manner displaying fraud, malice, or oppression within the meaning of CC § 3294, Fam C § 1101(g) provides for a mandatory award of attorney fees. However, an award of attorney fees is discretionary under Fam C § 1101(h), which provides for mandatory award of the entire asset when the breach of fiduciary duty falls within the ambit of CC § 3294. [In re Marriage of Hokanson (1998) 68 Cal.App.4th 987, 80 Cal.Rptr.2d 699]
Fam C §2030 provides the principal basis for the award of attorney fees and costs in marital termination proceedings. Under § 2030(a), an award may be made at any time during the pendency of the proceeding, or by the judgment, as well as for trial and appellate court proceedings occurring after judgment. [Re Marriage of Popenhager (1979, 1st Dist) 99 Cal App 3d 514, 160 Cal Rptr 379 (holding that the reference to awarding attorney fees pendente lite in Fam C §2030(a) does not preclude a fee award as part of a final judgment)]
Awards may also include legal services rendered or costs incurred before the commencement of the proceeding. [Fam C §2030(b)] The trial court has broad authority to make attorney fee awards in family law cases during the entire pendency of a case, and to modify or augment such awards after an appeal has been concluded. Consequently, failure to appeal a temporary award of attorney fees does not prejudice a later request to increase the award. [In re Marriage of Colvin (1992, 1st Dist) 2 Cal App 4th 1570, 4 Cal Rptr 2d 323] And the denial of a request for a temporary fee award does not prejudice a party’s application for fees at the end of the proceedings. [In re Marriage of Green (1992, 1st Dist) 6 Cal App 4th 584, 7 Cal Rptr 2d 872]
And there you have it, in black and white.
IAAL
