Skip to Content
Top

A Possibly Easier Way to Get the Other Side to Pay for Attorney Fees

Family Code section 2030 requires judges to make sure each party in a divorce case has equal access to legal representation.  Usually, section 2030 fees will be awarded if, among other things, there is a significant disparity between the income of each party.

But in the final analysis, appeals courts will only reverse a trial judge’s decision on attorney fees if there is an abuse of discretion.  This means that historically, a judge’s decision to award or not to award attorney fees (or the amount of attorney fee awarded) is up to the judge.  In other words, absent something unusual, the judge can do whatever he or she wants.  That’s why he or she is the judge.

But a new case, from Kern County, has tightened the standards regarding attorney fee awards.  The Court of Appeal that covers that area of California says that the findings that a judge is supposed to make in deciding the issue of attorney fees must be stated on the record, meaning the judge has to state the findings out loud in her or his voice or write it down in the decision.  It is not enough for the judge to simply think about the findings and then make a decision.

What findings are these?  There are three of them:  one, whether an award of attorney’s fees and costs (under section 2030) is appropriate;  two, whether there is a disparity in access to funds to retain counsel, and three; whether one party is able to pay for the legal representation of both parties.

If the judge fails to verbally state these findings, that’s ground for an appeal, but, like most appeals, the person doing the appealing still has to show prejudice.  That is, he or she must show that had the judge made the findings instead of remaining silent, the outcome would have been different.

This may seem like a very technical discussion, but the appeals court up in Kern County wanted to make a major statement:  judges can no longer do whatever they want to do on the issue of attorney fees.  In the words of the justices, “we conclude the ‘broad discretion’ referred to in judicial decisions discussing the version of 2030 predating the 2004 and 2010 amendments no longer exists”.  The justices also held that family law judges must actually follow the provision in section 2030 that says, “[t]he fact that the party requesting an award of attorney’s fees and costs has resources from which the party could pay the party’s own attorney’s fees and costs is not itself a bar to an order that the other party pay part or all of the fees and costs requested”.  Thus, it was error for the trial judge to conclude, as he did

[T]he Court notes that both parties obtained a significant amount of money from the sale of the family residence, each receiving approximately $300,000.  Both parties also received a significant distribution of funds from the parties’ 401k plan.  Under the circumstances, there is no demonstrated need for an order that [the husband] pay for her attorney fees.  Both parties have sufficient resources to pay for their own attorney’s fees and costs.

The justices found that the trial judge “committed legal error by failing to comply with two mandatory provisions of section 2030, subdivision (a)(2)”.  Specifically, the judge made no findings on whether there was a disparity in access to funds to retain counsel; and the court failed to make an ability-to-pay analysis.

This was critical because the wife had stopped working in 1996.  The husband, however, in 2014, earned $84,236.00 in wage income.  He also earned S corporation income of $588,289.00.

Therefore, an award of attorney fees and costs was mandatory, even though the wife had earlier in the case been awarded $15,000.00 in fees (before trial).  She apparently wanted an additional $115,134.65 in attorney fees for the trial itself.  But she got nothing; appealed; and won.  Now she will be getting some amount of attorney fees because the justices said such an award was “mandatory” and now the award will have to take into account her attorney fees in pursuing the appeal as well.

But this doesn’t mean that any person unhappy with a court’s frugal stance on attorney fees will win an appeal.  Most parties do not have the type of income disparity that these folks had.  If it’s a close call, the judge’s decision is probably going to be upheld on appeal.

The Court’s decision on attorney fees, along with some other parts of the 61-page opinion (but not all of the opinion) has been certified for publication, meaning it must be followed by judges throughout California and may be cited as precedent by judges and lawyers throughout the State.

The vote of the Court of Appeal was 3-0.

The case, entitled In re Marriage of Morton, was initially decided by the Hon. Stephen D. Schuett.  The appeal was written by the Hon. Donald R. Franson Jr., who was joined by the acting presiding judge, the Hon. Jennifer Detjen, and by Justice M. Bruce Smith.

Continue Reading Read Less

Our Attorneys Meet Our Attorneys

We Break Up Marriages

Our team leads the way with their extensive legal knowledge and a genuine understanding of the unique challenges that family law issues can present. Learn how our decades of experience and dedicated legal strategy set us apart.

Five-Star Client Reviews

In Their Own Words

At Andy Cook Law, we prioritize crafting the right strategy for your case, and it makes all difference. Read some of our client testimonials below.

    “Excellent Lawyer”
    “Mr. Cook's high level of knowledge and experience was clear from the start. His focus was always on fairly resolving issues and disputes, never allowing potential emotional pitfalls to wreck the work that had to be done.”
    - Former Client
    “The Best of the Best”
    “Mr. Cook fought for us with the tenacity and resourcefulness we’d hoped for. His work ethic and staff are truly professional, and we are thankful to have him on our team! They are the best of the best!”
    - Matthew S.
    “A General in the Battlefield of Litigation”
    “Attorney Andy Cook and his team of professionals were the best. With Andy in my corner, I felt like a winner. Always prepared and motivated, he removed a lot of my worries. A true General in the battlefield of litigation.”
    - Rod B.
    “Professional, Courteous, and Helpful”
    “Presented the best options for us to help the divorce go smoothly - made time to call/email when new options were available to us. Engaging and clear about the process.”
    - Former Client
    “Excellent Experiemce”
    “I hired him to take care of my divorce and he and his team was very thorough during the whole process.”
    - Former Client
    “Tremendous to Work With”
    “Andy has a lot of experience, and he is responsive to his client’s needs. He was tremendous to work with during the painful process of divorce. I could not have chosen a better lawyer to work with during my divorce.”
    - Robert H.
    “Diligent & Professional”
    “Andy maintained professionalism, as well as assisted in providing recommendations which saved me time and money without having to litigate a very contentious divorce.”
    - Former Client
    “He Can Get It Done”
    “My ex was doing everything possible to keep me from visiting my daughter. Andy stuck by me and we were able get 50/50 custody and end all of the nonsense. Andy can get it done if you need the help.”
    - Former Client

Contact Andy Cook Law Today!

We’re Ready to Help

A member of our team will be in touch shortly to confirm your contact details or address questions you may have.

  • Please enter your first name.
  • Please enter your last name.
  • Please enter your phone number.
    This isn't a valid phone number.
  • Please enter your email address.
    This isn't a valid email address.
  • Please make a selection.
  • Please enter a message.
  • By submitting, you agree to be contacted about your request & other information using automated technology. Message frequency varies. Msg & data rates may apply. Text STOP to cancel. Acceptable Use Policy
  • Attorneys With Integrity
    We've helped thousands of clients like you win their cases, all while practicing with integrity.
  • Attention to Detail
    We prepare meticulously for your case, documenting everything to avoid making mistakes.
  • Highly Responsive & Prompt
    When you need us, you'll get us. We prioritize fast communication and regular updates.
  • With You at Every Step
    We guide you through the legal process and make sure you never wonder about the status of your case.

Contact Us Today

Get A Free Consultation

At Andy Cook Law, we're always ready to take your calls! Give us a call or fill out the form below to contact one of our team members.

  • Please enter your first name.
  • Please enter your last name.
  • Please enter your phone number.
    This isn't a valid phone number.
  • Please enter your email address.
    This isn't a valid email address.
  • Please make a selection.
  • Please enter a message.
  • By submitting, you agree to be contacted about your request & other information using automated technology. Message frequency varies. Msg & data rates may apply. Text STOP to cancel. Acceptable Use Policy