Making cents of Family Code section 2030 fee awards

Help! My spouse just served me with divorce papers.  How can I pay for my divorce? The short answer is if you have the need and the other side has the ability to pay your fees, you can have your spouse pay your attorney fees and costs.  It is more complicated than that.  Below are some legal principles you can take to the bank:

Under California Family Code section 2030, a fee award is to ensure a party has sufficient resources to adequately and properly litigate the controversy and to implement public policy favoring “a parity between spouses in their ability to obtain legal representation” (equalizing litigating strengths). (Cal. Fam.Code, §§ 2030(a), 2032; Marriage of Sullivan (1984) 37 Cal.3d 762, 768; Marriage of Braud (1996) 45 Cal.App.4th 797, 827 (citing text); Marriage of Cryer (2011) 198 Cal.App.4th 1039, 1056; see also Marriage of Cheriton (2001) 92 Cal.App.4th 269, 318 [“There is no question that access to the family law courts through adequate representation is critical”].)

Therefore, the court’s decision on a request for § 2030 fees must be based upon (1) an assessment of the parties’ respective income and needs, (2) whether there is a disparity in their respective access to funds to retain legal counsel, and (3) whether one party is able to pay for legal representation of both parties. (Cal. Fam.Code, § 2030(a)(1), (2).

Further, both the making of the award and its amount must be “just and reasonable under the relative circumstances of the respective parties.” (Cal. Fam.Code, § 2032(a); Marriage of Braud, supra, 45 Cal.App.4th at 827 (citing text); see Marriage of Cryer, supra, 198 Cal.App.4th at 1056 [§ 2032 requires court, among other things, to engage in broad analysis of parties’ relative circumstances.].)

In determining what is “just and reasonable” under the parties’ “relative circumstances,” courts must consider the need for the award to enable each party (both the applicant spouse and the other spouse), to the extent practical, to have sufficient financial resources to adequately present his or her case, taking into account to the extent relevant the circumstances of the parties described in Family Code § 4320  (Cal. Fam. Code, § 2032(b); see Marriage of Keech (1999) 75 Cal.App.4th 860, 867-868; Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814, 824.)  In short, the proper legal standard for determining an attorney fee award requires that the cost of the proceedings be apportioned equitably between the parties given their relative circumstances. (Marriage of Falcone & Fyke (2012) 203 Cal.App.4th 964, 975.)

Two recent cases, In re Marriage of Morton [(2018) 27 Cal. App. 5th 1025] and In re Marriage of Ciprari [(2019) 32 Cal. App. 5th 83], have interpreted Section 2030 to be mandatory when the court finds both a disparity in access to funds and a disparity in ability to pay.  In Morton, the court states that the word “shall” used in the statute (“the court shall make an order awarding attorney fees and costs”) is mandatory rather than permissive.  The statute was amended in 2004 to delete the word “may” and insert the word “shall”, four times.  (In re Marriage of Morton, supra, 27 Cal. App. 5th at 1049.)  In 2010, the statute was amended again to include text stating “the court shall make an order awarding attorney fees and costs”.  Currently, § 2030(a)(2) states:

When a request for attorney’s fees and costs is made, the court shall make findings on whether an award of attorney’s fees and costs under this section is appropriate, whether there is a disparity in access to funds to retain counsel, and whether one party is able to pay for legal representation of both parties. If the findings demonstrate disparity in access and ability to pay, the court shall make an order awarding attorney’s fees and costs. A party who lacks the financial ability to hire an attorney may request, as an in pro per litigant, that the court order the other party, if that other party has the financial ability, to pay a reasonable amount to allow the unrepresented party to retain an attorney in a timely manner before proceedings in the matter go forward. [italics added]

In Morton, the court concluded that due to these changes in language, the “broad discretion” referred to in judicial decisions referencing the earlier versions of Section 2030 no longer exists.  The court interpreted the word “shall” to mean that the provision is now mandatory, and stated that “[w] hen considering an application for attorney fees, the trial court must comply with the mandatory provisions of the statute because discretionary authority “must be exercised within the confines of the applicable legal principles.”  (In re Marriage of Morton, supra, 27 Cal. App. 5th at 1050.)

In determining the amount of a § 2030 need-based fees and costs award, trial courts must apply the same statutory standards governing the threshold decision whether to make the award—i.e., the court must consider what is “just and reasonable” under the parties’ “relative circumstances” and must base its determination on the parties’ respective incomes and needs, and “any factors affecting” their respective abilities (Cal. Fam. Code, §§ 2030(a)(2), 2032(a).)  As applied to the specific facts of each case, the primary focus is on what is “reasonably necessary” to adequately maintain or defend the proceeding. (Cal. Fam. Code, §§ 2030(a)(1), 2032(b); Marriage of Marsden (1982) 130 Cal.App.3d 426, 446; see Marriage of Keech (1999) 75 Cal.App.4th 860, 870 [abuse of discretion to order husband to pay wife’s attorney fees without making any inquiry into reasonableness of the fees; Marriage of Dick (1993) 15 Cal.App.4th 144, 167.)

Relative need and ability to pay are not the exclusive considerations in fixing the amount of a “just and reasonable” fee award. In determining a “reasonable” fee award, trial courts should also take into account such matters as the:

  • nature and complexity of the litigation;
  • amount involved;
  • skill required and employed in handling the litigation;
  • attention given;
  • success of counsel’s efforts;
  • the respective attorneys’ professional standing and reputation;
  • intricacies and importance of the litigation;
  • labor and necessity for skilled legal training and ability in trying the case;
  • litigation costs already incurred and expected to be incurred through conclusion of the case; and
  • time consumed.

(Marriage of Keech, supra, 75 Cal.App.4th at 870; Marriage of Braud, supra, 45 Cal.App.4th  at 827, fn. 30; see Marriage of O’Connor, supra, 59 Cal.App.4th  at 884.)

The upshot is – where the strictures of Family Code section 2030 are met, an award of fees is MANDATORY.

This can be a very fact driven inquiry.  You need to know your financial position and at the very least estimate your spouse’s position.  You have to file a motion to get fees.  Both sides will have to fill out an Income and Expense Declaration detailing – you named it – your income and expenses.  This will give the Court a window into the parties’ relative need and ability to pay fees in addition to the other pleadings you file.  The process can be overwhelming for someone who doesn’t have familiarity with family law.  The person looking to have their fees paid by their spouse is wise to consult with an experienced family law professional before filing a motion for fees.