Can One Spouse Be Forced to Pay for the Other’s Attorney in a Divorce?

Legal fees can be a significant expense during a divorce case – especially one that takes a long time to settle. In some situations, one spouse may be unable to afford what a lawyer during a divorce trial will cost. Yet it is unfair for that spouse not to have a lawyer when the other spouse does have one. In these situations, the courts in California may order the higher-earning spouse to pay for the other party’s attorney.

Needs-Based Fee Awards

The statute regarding one spouse paying for the other’s lawyer during a divorce is California Family Code 2030. This law states it is the court’s responsibility to ensure each party in a divorce, annulment or legal separation has access to legal representation. The law states both parties should have access to a lawyer early in the proceedings to preserve their rights. The courts must ensure legal representation by ordering one party to pay for the other party’s attorney, if necessary.

The courts will look at two main factors to determine if one spouse should pay the other’s legal fees: whether a disparity exists in each spouse’s access to funds for a lawyer and whether one spouse can afford the legal representation of both parties. If a disparity does exist and one spouse can pay, the courts may force the said party to pay for his or her spouse’s legal representative. It is up to the party that cannot afford a lawyer to send a request for legal fees and costs to the court. The court will then analyze the situation and decide based on the facts at hand.

If a judge rules in the petitioning spouse’s favor, the other spouse will have to pay an amount that is reasonable to allow the first spouse to retain a divorce lawyer in enough time before the proceedings. The supporting party will have to pay the other spouse’s attorney an amount that is reasonably necessary for legal fees and court costs throughout the proceeding. These attorney’s fees may include legal services rendered before or after the divorce.

A judge has the power to modify an award already granted to one spouse to cover attorney’s fees if the case takes longer than expected, including to cover the costs of an appeal. A party that is not the petitioner’s spouse may also have to pay attorney’s fees; at least, as much as is necessary to litigate the issues relating to the party.

Factors Involved in the Court’s Decision

The petitioner must convince the courts to issue an award based on proof of financial need. This may take assistance from an attorney, for which the other spouse may pay if the judge rules in the petitioner’s favor. A judge will look at several factors when deciding to grant a needs-based attorney’s fee award in California.

  • A disparity in income between the spouses
  • Each spouse’s ability to earn
  • Each spouse’s ability to pay legal fees and court costs
  • Each spouse’s assets, income and debts
  • Each spouse’s current financial obligations
  • The petitioning spouse’s effort to find gainful employment
  • Whether paying for a lawyer would place an undue burden on the petitioner
  • Whether the other spouse has the resources to pay for both lawyers

Although California is a no-fault divorce state, the courts can look at a petitioner’s conduct when determining whether to award an amount to cover attorney’s fees. Bad conduct could hurt the petitioner’s chances. For example, if the courts believe the petitioner is intentionally not finding work, they may deny the request. On the other hand, the odds of a positive response may increase if the courts believe the other spouse is trying to draw out the divorce process unnecessarily. The judge’s decision will depend on the case.