• Tracy Duell-Cazes

Are there any cases where you can request that a judge award attorney’s fees?

Updated: Nov 22, 2021



In California, there are two specific circumstances where a judge may order one spouse to pay the attorney’s fees for the other. These are:


  • Need-based Award

  • Sanction-based Award


The law recognizes that during a divorce there may be a situation where one spouse is in a better financial position than the other and that this disparity should not be a reason why one spouse does not have access to legal representation during a divorce.


California Family Code Section 2031 states: “In a proceeding for dissolution of marriage, nullity of marriage, or legal separation of the parties, and in any proceeding subsequent to entry of a related judgment, the court shall ensure that each party has access to legal representation, including access early in the proceedings, to preserve each party’s rights by ordering, if necessary based on the income and needs assessments, one party, except a governmental entity, to pay to the other party, or to the other party’s attorney, whatever amount is reasonably necessary for attorney’s fees and for the cost of maintaining or defending the proceeding during the pendency of the proceeding.”


Needs-based Awards


During a divorce, if one spouse is the primary money-earner, and the other earns significantly less or is a stay-at-home parent, the judge in the case if petitioned, will consider the assets, debts, child support, spousal support, and income of both parties. Once the court examines all of the financial information, the judge will grant an equitable fee award. The need-based award is to ensure that representation is available to both parties. The need-based award avoids a scenario where the non-monied spouse is forced to either go into significant debt or go to court without legal representation.


The law also avoids a scenario where the monied spouse can overwhelm the other spouse, forcing a settlement that is against their best interests.


If either spouse overtly attempts to prolong the process, running up court costs and attorney fees, the court may grant a sanction-based award to the other spouse.


Sanction-based Awards


A sanction-based award is when a judge awards attorney fees to a spouse after determining that the other spouse is abusing the court system. If the judge finds that one spouse is prolonging the process, not acting in good faith to achieve a reasonable conclusion, acting unethically or even illegally, they may order that spouse to pay the legal fees of the other spouse.


Covered in Family Law Section 271, the law states, “Notwithstanding any other provision of this code, the court may base an award of attorney’s fees and costs on the extent to which the conduct of each party or attorney furthers or frustrates the policy of the law to promote settlement of litigation and, where possible, to reduce the cost of litigation by encouraging cooperation between the parties and attorneys.

Section 271 also states that the court would base the amount of the punitive award on the spouse’s ability to pay as not to cause an unreasonable financial burden. Recent rulings have also taken spousal and child support payments into account when determining the amount of the punitive award. The section also asserts that when a punitive award is requested, the requesting spouse is not required to provide any proof of financial need.

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