Attorney’s fees In San Diego Divorce Cases
In San Diego Divorce litigation, the courts follow the “American rule” concerning attorney’s fees. That is, the parties pay their own attorneys. There are, however, exceptions to this rule. One of them is the California Family Code which provides that one party may be ordered to pay the other party’s attorney’s fees in divorce and other family law cases.
The legislative intent of this exception from the American rule in divorce and other family law cases is to equalize the playing field in cases wherein one spouse has significantly greater income or assets. The party seeking San Diego Divorce attorney’s fees must declare that he or she has less money or limited access to funds to retain and maintain an attorney compared to the other party.
Also, the court must find that the other party has or is reasonably likely to have the ability to pay for the attorney’s fees of both parties. The party requesting attorney’s fees in divorce and other family law cases will be required to complete an income and expense declaration under penalty of perjury stating his or her amount of income, sources of income, assets,debts, and expenditures.
Requests for attorney’s fees and costs must be accompanied by the attorney’s declaration stating the attorney’s hourly rate; the nature of the litigation; the attorney’s experience in the work demanded; the fees and costs incurred or anticipated; and why the requested fees and costs are just, necessary, and reasonable.
In making the request of the court that the other spouse (in divorce cases, not in child custody cases), the requesting party will have to declare his or her training, job skills, and work history; as well as the current job market for the job skills of the party, and how much time and expense would be necessary to acquire the education or training to develop the above job skills.
The requesting party should inform the court if his or her career has been impacted by periods of unemployment which occurred because of time taken to attend to domestic duties. He or she should also indicate whether he or she contributed to the other spouse’s education, training, career position, or license of the supporting party. In addition to this final factor contributing to the judge’s decision to award attorney’s fees, the party who contributes to the education of the other spouse in a divorce may be entitled to reimbursement for those payments.
In order to represent a client in a divorce case, the client will not only need the services of his or her attorney. It may be necessary to employ the services of an expert or experts. If the client seeks funds in order to hire a forensic accountant or an appraiser, for example, many courts require a declaration from the expert in order to obtain an advance fee for the expert, and experts usually require retainer fees in advance. Most courts require that a declaration regarding expert fees state the hourly rate, the scope of the task, and an estimate of the number of hours required to complete the task.
In some cases, the parties to a divorce may have a modest income, but substantial equity in the marital residence. In such cases, it is possible for the client to grant the attorney a lien known as a Family Law Real Property Lien, or FLARPL. Either spouse has the right to secure payment of attorney’s fees through a FLARPL with his or her share of the community property interest in the marital residence to pay an attorney in divorce cases, legal nullification, or legal separation cases.
The ability of a party to do this is limited to the party’s interest in the community real property. The party who obtains a FLARPL must also serve the lien on the other party’s attorney and provide the following information: a full description of the real property; the party’s belief as to the fair market value of the property and documentation supporting that belief; encumbrances (debts) on the property as of the date of the declaration; and the amount of the family law attorney’s real property lien.
The other party may object to the filing of a FLARPL. That party must declare under penalty of perjury: the specific objections to the FLARPL and to the specific items in the above notice; the party’s belief as to the appropriate items or value and any documentation supporting that belief; a declaration specifically stating why recordation of the encumbrance at this time would likely result in an unequal division of property or would otherwise be unjust under the specific circumstances of the case.
The attorney who obtains a FLARPL must comply with the rule of professional conduct which provides that an attorney shall not enter into a business transaction with a client, or knowingly acquire an ownership, possessory, security, or other pecuniary interest adverse to a client, unless each of the following requirements has been satisfied: the transaction or acquisition and its terms are fair and reasonable to the client and are fully disclosed and transmitted in writing to the client in a manner which should reasonably have been understood by the client; and the client is advised in writing that the client may seek advice of an independent lawyer of the client’s choice and is given a reasonable opportunity to seek that advice, and the client thereafter consents in writing to the terms of the transaction or the terms of the acquisition.
An award by the judge in a divorce case is not a blank check for the client to unnecessarily drive up legal fees knowing that the other party will have to pay the attorney’s bills. As such, the judge is unlikely to order one party to pay 100% of the other party’s attorney’s fees and costs. The person incurring the legal expenses needs to have some “skin in the game,” as they say.
In divorce cases, superior financial resources should not equate to an advantage over the other party as they may be in other civil disputes. An attorney should be willing to represent a client if the community assets and income are enough to cover the attorney’s fees of both spouses.
If you need a divorce Attorney in San Diego for a Free Consultation, you should seek the advice of a California State divorce attorney. The San Diego Divorce Attorney at the Law Office of Michael C. MacNeil have many years of divorce law experience and will competently represent your family law case.
Please call for a divorce attorney consultation at (858)922-7098. We look forward to helping you with any of your questions about divorce in San Diego.
This blog post is not intended as legal advice and should be considered general information only.