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The California Family Code provides that in a family law case, the court can order one party to pay a contribution to the attorney fees incurred by the other party “... where the making of the award, and the amount of the award, are just and reasonable under the relative circumstances of the respective parties.” Essentially, the court can order the spouse in a superior financial position to pay a contribution toward the attorney fees of the other spouse. In considering the relative circumstances of the parties the court considers their respective incomes and expenses, as well as their cash available to pay counsel. For example, in a family law case where the husband earns $10,000 each month, and the wife earns $1,300 each month, the court could find that based on the relative circumstances of the parties, particularly the great disparity in the parties incomes, it would be just and reasonable to order husband to pay a contribution to wife’s attorney fees so wife is able to afford an attorney to represent her in the case. The court does this to achieve “parity” or a level playing field so that both parties have equal access to justice.
This rule of “leveling the playing field” for parties to a divorce has at times resulted in the higher earning spouse being ordered to pay a contribution to the opposing attorney, leaving that spouse with little or no funds to pay their own legal fees. This issue becomes particularly difficult when there is a great disparity in the parties’ incomes, but even though one spouse earns much more than the other, that higher earning spouse still has very little money to pay their own attorney fees. For example, in a divorce where wife earns $5,000 per month, and husband has no income, clearly wife is in a superior financial position as she earns an income which is infinitely greater than what husband earns, but after taxes, living expenses, and an order that wife pay, for example $2,500 to husband’s attorney toward his fees, wife may be left with no money to pay her own legal fees.
The California Court of Appeal addressed this issue in the recent case Alan S. v. Superior Court, where the court identified the issue of the case, saying the issue “is how courts are to achieve, particularly in low and middle income cases, the legislative goal of assuring “each party has access to legal representation to preserve each party's rights …” In Alan S., the Appellate Court reversed a fee order made by the Trial Court, stating that the purpose of the statue regarding awards of attorney fees is “not the redistribution of money from the greater income party to the lesser income party. Its purpose is parity: a fair hearing with two sides equally represented. The idea is that both sides should have the opportunity to retain counsel, not just (as is usually the case) only the party with greater financial strength.” The Appellate Court goes on to warn that “however, by providing for orders to pay money so that one's adversary can afford an attorney, there is the paradoxical possibility that a court may effectively deprive the paying party of the ability to present his or her own case.”
The courts are directed to consider other factors when making an order regarding attorney fees, such as the conduct of each party and how that conduct promotes or frustrates the policy of law to promote settling cases, though these considerations point toward fee orders that are more like sanctions than need based fees. I find in practice that some parties attempt to ask the court to almost “rubber stamp” an attorney fee award where there is a large difference in the parties’ incomes. The Alan S. case provides an important contribution to the case law in this area because it reminds the court to consider the practical implications of these attorney fee awards.