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Can My Ex Pay My Attorney Fees in My Divorce Case?

In most litigation cases in California, you are on your own as far as attorney or legal fees are concerned. With a few exceptions, each side has to pay their own attorney fees and costs. In family law, however, the Court provides multiple ways to collect attorney fees. Below is a description of need-based fee awards.

Given the right circumstances, you can make your ex pay your attorney fees and costs in a divorce, legal separation or annulment case.

The goal is to give both sides access to a lawyer. You can get a fee award even if you don’t have an attorney yet. The fee award will help you get an attorney. The Court is ordered by statute to provide fee awards, if appropriate, as early in a case as possible. If you have an attorney, you can ask for money to recover what you have already paid or get money to pay for anticipated costs.

In making their decisions, Judges will consider:

  1. both parties' income and needs,

  2. any imbalance in both parties’ access to money to hire a lawyer, and

  3. if one party is able to pay for a lawyer for both.

Under needs-based fee statute Family Code section 2030, once the Court balances the initial factual issues involved in determining a party’s need for fees and the other party’s ability to pay and the factors balance in favor of the person requesting fees, the Court MUST make a fee award, though the precise amount is up to the Judge in its discretion after it balances the circumstances of the parties.

One thing a lot of people don’t know is that you can get a fee award more than once! You might run out of the money you initially got and anticipate needing more money to continue the case. So long as you can make the same case again for fees arguing your need for fees and your ex’s ability to pay the fees, you can collect more fee awards.

It is important to act quickly! Once you have a Judgment in your case (your divorce, legal separation or annulment is final), you can’t get a fee award for prior work done in the case. However, you can get an attorney fee award for work to modify your Judgment (for example to change child custody or child support orders in the Judgment).

One positive thing to consider is that you have a right to an attorney fee award even if the court does not make the orders you wanted. For example, if you go to Court to get an order to sell the family home and lose, you can still get an attorney fee award for the fees and costs involved in going to court, so long as you can show your need for the fees and your ex’s ability to pay.

You might think it is simple to argue that you don’t have enough money for an attorney and the other side has the money. There is a large body of law, however, interpreting the need-based fee statutes, and it takes good representation to maximize the fee award you can get. Courts won’t make an award at all, or won’t award much in fees if you don’t make a convincing argument. Additionally, supporting a fee award requires some financial sleuthing of your ex’s finances and the ability to document your and your ex’s situation in a slew of required legal documents. One false move could doom an otherwise meritorious request for attorney fees. When looking to collect attorney fees, choose wisely. Choose the Law Offices of Jane Migachyov.


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