In San Diego, many of the divorce and legal separation cases have the issue of attorney fees. This can be an extremely contentious and bitter issue in many custody, visitation, child support and spousal support cases and also can be a factor in the division of assets and debts as well. In the five court houses which hear family law cases in San Diego [Chula Vista, El Cajon, Vista and the two in San Diego], attorney fees can be asked for as both a temporary order in an Order to Show Cause as well as at Trial.
There are many factors and theories regarding attorney fees. This article will focus on some of the most common: nature of the litigation; responsibility undertaken; financial circumstances of paying spouse; time consumed in preparing for court hearings and other necessary legal tasks; the necessity for skill in legal training; the difficulty of the case; the success of the attorney’s efforts; the reasonableness [or non reasonableness] of the party; who is the prevailing party and many other factors. This is a very complicated area and needs careful and deliberate attention.
One of the underpinnings of the legal system in family law is the ability for each side to be able to afford an attorney to have a “level playing field” in litigation. In some limited areas of the law, an attorney may be appointed for representation such as in a criminal defense case or a juvenile dependency case however there is no such provision under the law for divorce and legal separation cases. There is a provision for appointment of counsel for cases in which paternity is being disputed and if this is your case please call our firm directly. As such, it is important for both parties to have legal representation and not to be forced into self representation or being in “pro per” as this is sometimes referred to. Another alternative is to use the Family Law Facilitator located in the East County, North County, South Bay and San Diego Central Divisions who assist self represented litigants to fill out their pleadings however do not represent them in Court.
One of the most significant factors is the disparity [difference] in income. As above, the financial circumstances are one of the most significant factors. This needs to be analyzed, however in a support case, to what is the actual disparity pre support payment and also post support payment. As the Disso Master guideline child support calculations and temporary spousal support calculations will be used by the Judge in setting the actual amount, many Judges now consider disparity in post support payment and not pre support payment. This is a complicated analysis and the attorney and client need to review the Disso Master printout to determine the post support payment disparity [if any] prior to making an argument for attorney fees.
The Court may order any award of attorney fees from either community property, quasi community property or separate property. This can come from community income, separate income, principal or interest income for any source.
One strategy our firm has used to avoid large awards of legal fees when our client would be a potential payor of an attorney fee contribution is to make an offer to settle in accordance with the law immediately upon analyzation of all of the facts. This is sent under Evidence Code Section 1152 as an offer to compromise or negotiate a disputed claim. This is protected under the law and cannot be used for any purpose [normally] other than attorney fees. If, at time of Trial, the Judge’s order awards less than the offer made initially, then an argument can be made that the efforts of the attorney and/or client who did not accept the offer had no value as the same orders would have been made without the skill of the attorney or the work done. Of course, every case is individual and needs a competent attorney to analyze.