Enforcing Divorce Judgments and Attorney’s Fees Explained

Attorney’s fees may be sought under a variety of reasons in any action under the Family Law Act. This article discusses some options for fees when seeking to enforce your judgment of dissolution.

The easiest way to seek fees is when you are a non-offending party (you have complied with the judgment) and seeking the other party to perform what was expected of them by the terms of the judgment. Many times, a judgment will contain a provision relating to attorney’s fees for enforcement and might indicate:

“In the event that either party brings any action or proceeding to enforce any provision contained in this judgment, the prevailing party shall be entitled to receive from the other such reasonable attorney’s fees and other reasonably necessary costs incident thereto as will be fixed by the court, regardless of the need and or ability of the parties to pay same.”

A provision such as this is commonly referred to as a “prevailing party” clause and is enforced in the same manner as any contract that includes an attorney’s fee provision.

What Is a Prevailing Party Clause?

A “prevailing party” clause is not something you would expect to find in a judgment after trial, and arises only in negotiated agreements in a divorce. Sometimes, a lower earner or the spouse with less economic strength may object to such a provision, as it could expose them to fees that they would not otherwise incur.

Nonetheless, when included, the clause serves as a contractual commitment between spouses, stipulating that the losing party in enforcement litigation must cover the winner’s legal expenses. This can dramatically shift strategy during settlement negotiations, as spouses weigh the risk of being held liable for both their own lawyer’s fees and those of their ex-spouse.

Attorney’s Fees Without a Prevailing Party Clause

Even in instances where there is no prevailing party clause, an award of fees may be mandated by statute, such as in actions to enforce support orders or breaches of the judgment that constitute a breach of fiduciary duty or bad faith conduct.

Whenever an action needs to be brought to enforce a judgment, consideration should be given to recovering the fees and costs incurred by the offending party’s non-compliance. Likewise, a party that is not following the terms of a judgment should expect the court not only to enforce the order but further order the payment of attorney’s fees and costs incurred by the non-offending party.

Statutory Basis for Attorney’s Fees in Family Law

California family law provides specific statutory authority for attorneys’ fees in enforcement actions:

• California Family Code §2030 & §2032: Allows courts to ensure both spouses have access to representation. A spouse with significantly less financial strength may receive fee awards to “level the playing field.”
• California Family Code §271: Permits fee awards as a sanction for bad faith conduct or tactics that frustrate settlement.
• California Rules of Court, Rule 5.427: Sets requirements for filing a motion for attorney’s fees and specifies the necessary supporting documents, including financial disclosures.

These laws establish that attorneys’ fees may be awarded not just to punish misconduct, but to promote fairness and equal access to justice.

How Courts Determine “Reasonable” Attorney’s Fees

When courts award attorneys’ fees, they often consider:

• The Lodestar Method: Multiplying the number of reasonable hours worked by a reasonable hourly rate.
• Judicial Discretion Factors: Complexity of the case, skill required, results achieved, and necessity of litigation.
• Financial Circumstances: Each party’s income, assets, and ability to pay, usually established through Income and Expense Declarations (Form FL-150).
• Conduct of the Parties: Whether either party engaged in bad faith or unnecessarily prolonged litigation.

The California Supreme Court has recognized, in cases such as Marriage of Sullivan, that trial courts have broad discretion in awarding fees, striking a balance between fairness and necessity.

Common Situations Where Attorney’s Fees Are Awarded

Attorney’s fees may be awarded in many post-divorce enforcement scenarios:

• Failure to Pay Support: Non-compliance with child or spousal support obligations.
• Property Division Disputes: Refusal to comply with orders dividing community property or debts.
• QDRO Enforcement: Failure to implement Qualified Domestic Relations Orders dividing retirement accounts.
• Custody or Visitation Enforcement: When one parent refuses to honor court-ordered parenting time.
• Discovery Disputes: Failure to provide mandatory financial disclosures may trigger fee-shifting.
• Bad Faith Litigation: Actions filed solely to harass or delay may result in sanctions under Family Code §271.
• Breach of Fiduciary Duty: Particularly in hiding or mismanaging marital assets.

Procedural Steps to Request Attorney’s Fees

To recover attorney’s fees in enforcement actions, a spouse typically follows these steps:

1. File a Request for Order (RFO): This initiates the process and asks the court to compel compliance while awarding attorney’s fees.
2. Submit Financial Documentation: Income and Expense Declaration (Form FL-150) is mandatory. The court cannot decide on fee allocation without current financial information.
3. Provide Supporting Evidence: Invoices, billing statements, and declarations that detail hours worked and the necessity of fees.
4. Attend the Hearing: Both parties present arguments, and the judge exercises discretion in determining whether fees are awarded.

The timeline can vary but often includes a filing period, service on the other party, and a scheduled hearing date within several weeks.

Risks of Ignoring Enforcement Orders

A spouse who refuses to comply with divorce judgments not only risks enforcement but also the additional burden of paying the other party’s attorney’s fees. Courts may:

• Enforce orders through wage garnishment, bank levies, or property liens.
• Sanction the non-compliant spouse with additional attorney’s fees and costs.
• Hold the offending party in contempt of court, which may result in fines or imprisonment.

According to Judicial Council data, contempt filings and enforcement actions remain one of the most common post-divorce motions in California family courts, highlighting the seriousness with which judges view compliance.

FAQs on Attorney’s Fees in Family Law Enforcement

Can I request attorney’s fees if my ex refuses to pay child support?

Yes. Courts routinely order fee-shifting in child support enforcement cases under Family Code §§3557 and 2030.

What if my divorce judgment does not include a prevailing party clause?

You may still be entitled to attorney’s fees under California Family Code §§2030, 2032, or 271, depending on financial need, bad faith conduct, or litigation tactics.

How do courts decide if attorney’s fees are reasonable?

They apply the lodestar method, reviewing hours worked, billing rates, and complexity, while considering income disparity and conduct.

Can I be forced to pay my ex’s attorney’s fees?

Yes. If you fail to comply with court orders or engage in litigation misconduct, the court can order you to pay your ex’s attorney’s fees.

Do attorney’s fees apply in modification cases?

Yes. If you seek or oppose modifications of child support, spousal support, or custody, the court may allocate attorney’s fees to ensure both sides have equal representation.

Can I recover attorney’s fees if I represent myself?

No. Courts generally do not award fees to self-represented parties, as there are no attorney costs to shift.

Do attorney’s fees get added to child support arrears?

Yes. In many enforcement cases, the court may add attorney’s fees to arrears, effectively increasing the balance owed.

Get Legal Help

Navigating post-divorce enforcement and attorney’s fees requires experience, knowledge of California’s family code, and an understanding of local court procedures. The attorneys at Reape Rickett have decades of experience handling fee motions, support enforcement, property division disputes, and contempt proceedings.

If you are facing challenges enforcing a judgment or worried about attorney’s fee exposure, contact Reape Rickett today for a confidential consultation and ensure your rights are protected.