Will The Court Make My Ex Pay My Attorney Fees?

This is a question asked in nearly every dissolution case. Typically, there is a “breadwinner” in the family and the other spouse will have no income or lesser income. The general rule is that everyone pays for their own lawyer. As with any general rule, there are always exceptions. Under California Family Code, Section 2030, “… the court shall ensure that each party has access to legal representation, … 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.” So, yes, it is possible to have the spouse with the higher income pay attorney fees for the lower income spouse.

A recent case illustrates, however, that this may not be as good as it looks and litigants must be wary.The case, Marriage of Davenport, was a very high income, high assets case. To say this case was hotly contested is an understatement. Wife filed a request that Husband pay her fees in the amount of $934,000. Oddly enough, the trial court ordered Wife to pay her Husband’s attorney fees in the amount of $304,000 based on Wife’s counsel’s conduct during the early portion of the case. This was appealed by Wife’s attorney and the appellate court affirmed the trial court’s ruling, so Wife had to pay Husband’s attorney fees. Well, the case continued on at the trial level and after a 73-day trial, the court ruled in Wife’s favor saying that Husband breached his fiduciary duty owed to Wife by the way he handled certain assets, failing to disclose certain assets, made substantial gifts of community property without Wife’s consent, and destroying business records. Based on these breaches of fiduciary duties, Wife was entitled to attorney fees. Wife asked for $5.4 million in fees from Husband. The court awarded her $1.9 million in fees. So the moral of the story is: Be very careful how and what you litigate over. Yes, the court can award, in proper cases, one spouse to pay the fees of another spouse, however, litigants better be prepared that the award may not cover all the fees incurred by the lower income earning spouse and they may very well have to cover a portion of their own fees.