Awarding Attorney’s Fees In Actions To Dissolve Marriage


The Court has the ability to order one spouse to pay attorneys fees and costs to the other spouse’s attorney in order to provide the “economically disadvantaged” spouse access to legal assistance. As stated in the 1985 case, Marriage of Hatch, “California’s public policy in favor of expeditious and final resolution of marital dissolution actions is best accomplished by providing at the outset of litigation, consistent with the financial circumstances of the parties, a parity between spouses and their ability to obtain effective legal representation.


Most recently, the Court has had to deal with the issue of awarding fees to a spouse with two million dollars in assets “remaining.” William and Karen O’Connor succeeded in spending over three million dollars in attorneys fees and costs in their dissolution action. William was down to two million dollars in assets left, while Karen had at least forty million dollars in assets left. William’s first application for attorneys fees and costs resulted in an award of $250,000. He later petitioned for additional fees and costs and was awarded $450,000. Karen appealed the second award, stating the court was unable to make such an award because William had sufficient resources to pay his own attorneys fees and costs.


The Appellate Court, in analyzing the issue, noted that an appeal from an order awarding attorneys fees and costs pendente lite will not be overturned absent a clear showing of abuse of discretion. Prior to 1990, the statute authorizing an award of attorneys fees and costs required a demonstration of “need.”


In the 1990 case, Marriage of Joseph, the court entered an order awarding attorneys fees to Wife, the less affluent party, stating if she were required to pay her own attorneys fees and costs, she would be forced to reduce her liquid assets to almost nothing. Husband appealed the order. The court concluded that, although it seemed unfair to require Wife to exhaust her liquid assets when Husband had vast wealth, Wife had not shown the requisite need to qualify for an award.


The legislature responded to Joseph with a bill intended to clarify the definition of need, and added the fact that if the party requesting an award has resources from which he/she could pay his/her own attorneys fees and costs, that fact is not itself a bar to an order that the other party pay all or a part of the fees and costs requested. The Appellate Court noted that Husband’s appeal was nothing more than a refusal to acknowledge the unequivocal meaning of the 1990 amendment language. The trial court, based on its knowledge of the litigation, was eminently qualified to rule on the request. However, the Appellate Court stated that, “given the relative circumstances of the parties in this case, it undoubtedly would have been reasonable to deny Husband’s request for attorneys fees and costs.”

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