Articles Posted in Attorney’s Fees

The California Family Code governs various aspects of a divorce proceeding. In many cases, the Code operates to establish a fair and just process for both spouses and any children involved. One of the ways the law does this is to ensure that both parties have access to legal representation. Under the law, courts may order one party to pay the other party’s attorney’s fees and costs of maintaining or defending the proceeding. It is no surprise that the Code functions in this manner, considering the importance of being represented by an experienced family law attorney in any divorce-related action. Spouses from the San Diego area must ensure that their rights are protected every step of the way.

It is not uncommon for parties to seek an award of attorney fees as part of a divorce case. There may be times when it is justified and supported by the evidence or circumstances. And there are also situations where the court will refuse to issue an award of attorney fees, in accordance with California law. In a recent case, the wife sought an order to set aside the divorce judgment, claiming that her husband owned a great deal of property in Iran while they were married, which she claimed to have discovered after the end of their marriage. She further alleged that her husband transferred the proceeds of the land sales to his brother and his son, Majid Salim.
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The California Family Code and other portions of state law govern many aspects of a divorce proceeding. Courts in this state are empowered to issue any number of orders affecting the parties’ rights to items such as marital property, spousal support, and child support. It should come as no surprise that couples who are going through the divorce process must adhere to many of the procedural and substantive legal requirements set forth under these laws. In order to best protect your rights, you are encouraged to contact an experienced family law attorney from the local San Diego area, who can guide you every step of the way.

The failure to comply with certain legal requirements can negatively affect your rights in a case. In a recent court decision, In re Marriage of Wisniewska, the parties lived in Poland at the time of their divorce. As one would assume, various court proceedings concerning the couple’s divorce took place in Poland, and the divorce judgment was filed there on October 21, 2010. At the time, they had two adult children living in the United States and one minor child who still lived with them in Poland. In March 2011, the husband filed papers to register an out-of-state support order in the San Mateo County Superior Court, where his ex-wife now lived, in order to enforce the divorce judgment.

It seems that the wife was the “non-custodial parent” and obligated to pay child support under the Polish divorce decree. She opposed the notice of registration, arguing that she was awaiting a ruling from a Polish court on her motion to modify the amount of child support. The trial court granted the husband’s request and registered the Polish decision. By virtue of this decision, a case was opened with the County’s Department of Child Support Services, which in turn determined that the wife owed more than $8,000 in child support. The husband took certain legal steps to enforce the support order, which the wife opposed. In response, the husband sought attorney fee sanctions under § 271 of the California Family Code.
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In many divorce cases, one spouse often earns a greater income or has easier access to financial resources than the other. For the less advantaged spouse, this can present a multitude of problems throughout the proceedings. But fortunately, California law serves to reduce the disparity in income and access to funds, at least as far as one’s legal representation goes. One of the most significant steps in pursuing your case and protecting your financial rights – is to find an experienced family law attorney who is fully aware of the local laws applicable to cases brought in the San Diego area.

In a recent case, In re Marriage of Aguina and Kang, the trial court determined that the wife would be obligated to pay $10,000 of the husband’s attorney fees, to date. Here, the husband sought to dissolve the marriage back in September 2008. Since that time, the parties have been undergoing protracted, contentious litigation in both family and civil courts. In this particular segment of their case, the husband filed an order to show cause – why the wife should not be ordered to pay $25,000 of his attorney fees and $3,500 in monthly spousal support. He argued that his wife failed to comply with requests to produce documents reflecting the amount of income she earned or received.

Although both parties submitted income and expense declarations in the spring of 2012, the court ordered a forensic accounting of the wife’s income sources and expenses (and ordered her to pay for the evaluation). Later, the court found that neither party had been particularly forthcoming with information regarding their sources of income. Further, at the hearing, the wife still had not provided all of the financial documents that she was required to produce. The court ordered the wife to pay $10,000 of the husband’s attorney fees (which amounted to $25,000), concluding that it was necessary to allow him to pursue the litigation “on an equal basis and equal footing” with his wife. The wife appealed.
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The California Family Code strives to create an even playing field for spouses who are going through divorce proceedings. One significant matter concerns the ability of each spouse to be represented by an attorney. In many cases, one party earns a larger income than the other and can afford to pay for legal representation, while the other may not be in a financial position to do so. The law, which applies to divorce cases in San Diego and throughout the state, provides a mechanism by which the parties will both have access to legal representation. If you are considering a divorce, the most effective way to protect your rights is to contact an experienced family law attorney as early as possible in the proceedings.

Unfortunately, some dissolution of marriage cases are contentious and drawn out. A recent case, In re Marriage of Mead, involved a 10-year litigation brought by the husband against his ex-wife. In his most recent legal proceeding, the husband argued that the trial court did not have subject-matter jurisdiction to order him to pay attorney fees after his last appeal. According to the facts relevant to this particular proceeding, the parties entered into a marital settlement agreement in 2004. In 2005, the court entered judgment pursuant to the agreement. The agreement provided, among other things, that the husband would pay his ex-wife $50,000 to equalize the division of marital assets.

The husband failed to make that payment. Instead, he prolonged the proceedings by filing various motions to vacate, resisting his ex-wife’s motion to enforce the settlement, filing for bankruptcy protection, and seeking two unsuccessful appeals in this court. Ultimately, the court awarded the ex-wife over $80,000 in attorney fees under Sections 271 and 2030 of the Family Code for defending the latest appeal. Once again, the husband appealed, arguing that the court did not have the jurisdiction to hear and decide the matter under the Code of Civil Procedure Section 664.6. Specifically, he claimed that under that statute, the court could not award attorney fees once the divorce action was no longer pending, in the absence of a request by the parties to retain jurisdiction.
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Divorce can take a toll on families, both emotionally and financially. In some divorce cases, one spouse may be more vulnerable financially than the other. For instance, it is not uncommon for one spouse to be the main “breadwinner” and for the other to take care of their children and home. In some cases, both parties are employed outside the home but there may be a huge disparity in their income levels. These financial considerations (and many others) could ultimately factor into the judgment of marital dissolution. Anyone who is considering a divorce is encouraged to contact an experienced San Diego family law attorney who can protect your financial interests throughout the proceedings.

In some cases, a spouse may be able to recover attorney’s fees related to dissolution of the marriage. While California law authorizes an award of attorney’s fees in divorce actions, it is typically within the discretion of the court whether and to what extent to award such fees. Under section 2030 of the state Family Code, courts must ensure that each party has access to legal representation and may order one party to pay to the other any amount deemed reasonably necessary for attorney’s fees (and for the cost of maintaining or defending the proceeding). In a recent California divorce case, the wife sought to recover attorney’s fees from her soon to be ex-husband.

The trial court denied the request, pointing out that the statute authorizes a fee award that would be “just and reasonable” taking into account the circumstances of each party. Under the law, the court must look at one party’s relative need and the other party’s ability to pay the fees. In making such a determination, the court may review evidence related to the parties’ current assets, incomes and abilities, including investment and income producing properties. The court found that there had not been a disparity in the access to funds to retain an attorney and that no party had the ability to pay their own and the other’s fees.
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