It all starts with the California Family Code Section § 2030 et. seq. Under Section 2030, the Court may award attorney fees to either party upon request, upon a showing of need and ability to pay.
This is an oversimplification, of course. The requesting party must show there is a disparity in access to legal counsel without an award. This doesn’t mean you’re entitled to the exact same level of expertise as the other party, but the Court has a duty to ensure you have access to an ability to hire counsel. The inquiry doesn’t stop there, though. The other party must also have the ability to pay (to some degree) so that both of you have access to counsel.
One easy way to think about it: you must show you have a need, and you must show the other party can pay. Courts will consider each party’s income and assets, to include income-producing properties and investments. The Court will add all this up and determine whether there is a sufficient disparity to make a need-based award under Section 2030. Should the Court make an award, this doesn’t mean you’ll get a boatload of cash, but rather, the Court will make an order sufficient to permit the requesting party to efficiently handle whatever issue is immediately before the Court.
This all assumes the other party has the ability to pay, and if your attorney engages in conduct that purposefully and unnecessarily prolongs litigation (or pretty much any other unscrupulous conduct meant to frustrate settlement) for the purpose of continuing to receive funds from the other party, you may end up paying the other party’s attorney fees in either in the form of a § 2030 award, or as true punishment, in the form of sanctions under Family Code § 271.
Why Would the Court Make Me Pay for the Other Party’s Lawyer?
In short, to ensure both parties have access to legal representation regardless of your immediate financial circumstances. Perhaps one party cleaned out the marital bank account, leaving the other party destitute (Hint: don’t do that). Perhaps one party recently received a huge inheritance. Hypothetical situations aside, the primary purpose is to ensure each party can defend/maintain the proceeding, and Family Code 2030 helps make the process a bit fairer.
How Do I Get a Section 2030 Award?
You must ask for it. Simple right!? You can request it orally in Court, or you may submit it with a Request for Order (RFO).
I Have No Money, But We Own a House Together, And I Need a Lawyer!
You’re in luck. If you’re unable to find an attorney who will take your case without an up-front retainer (a fairly common scenario) but you and your spouse or domestic partner own property, you may be able to use the equity in your property to finance the litigation.
Family Code 2033 permits what is called a “Family Law Attorney’s Real Property Lien” (FLARPL). It allows for the encumberance of the equity in the real property in order to pay fees earned or anticipated to be incurred during the proceeding. Under Family Code 2034, the Court must approve FLARPL’s in complex cases involving substantial issues so that the requesting party has adequate access to representation. While available, attorneys are not really a big fan. It is an additional step that takes time and money, and I think most people would agree, cash in hand is far preferred to a lien on real property yet to be dispositioned in the divorce proceeding.