One of the family law court's objectives is for the parties to have a 'level playing field' relative to resources to pay lawyers and litigation costs. There is a large body of law that sets out the rules as to when a court should or should not order one party to pay all or a portion of the other party's litigation costs.
The court has the ability to punish a party for certain types of conduct in the form of sanctions. Sanctions are designed to punish bad conduct and to motivate a party to play by the rules. The sanctions can be monetary awards or in rare instances may take the form of 'issue sanctions.' If the court makes an issue sanction, the recalcitrant party may be prevented from introducing evidence on the specific issue involved, which could be fatal to that party's case.
California law dictates that an attorney fee award should be made in favor of a party with relative need for financial assistance in the funding of the litigation if the other party has the ability to make a financial contribution and if the award is necessary to “level the playing field.” In order for an award to be made, the fees must have been reasonably necessary. In making a fee award, divorce courts look to many issues including: the complexity of the issues, results achieved, the amount of time expended, the skill of the lawyer and the level of cooperation of the requesting attorney and party. The family law court will look to all of the factors set forth in Family Code section 4320 in the analysis of a fee award request. Family Code section 4320 is the code section that addresses the award of spousal support.
Fees may be awarded at the temporary stage of the litigation, when the judgment is entered or at the appellate stage. A fee award may be made against one of the parties to the divorce or against a joined third party, a joined entity or a joined pension plan.
An attorney fee award may be denied for a number of reasons including but not limited to the following:
- There was no relative need
- The fees incurred were not reasonably necessary
- The fees were excessive
- The fees incurred related to an unmeritorious appeal
- Bad faith conduct
- Frivolous conduct
- Conduct designed to delay litigation
- The fees incurred were to pursue a novel legal theory
- Attorney or party were uncooperative
- Excessive settlement demands
- An attorney was discharged before an RFO for fees was filed
Family law courts look to the “Cueva”* factors and the “Keech”* factors in determining the amount of any fee award.
* California family law cases
A party may be sanctioned pursuant to Family Code section 271 or Family Code section 2032(b) [soft sanctions]. Sanctions may be granted for matters such as: bad conduct, breach of fiduciary duties, lying, misrepresentations, excessive settlement demands, frivolous conduct, failure to comply with local rules, conduct that increases the cost of litigation, unprofessional or uncivil behavior, harassment, failure to cooperate or obstreperous conduct.
Sanctions may be granted pursuant to Code of Civil Procedure section 128.7 against an attorney or a self-represented party if:
- The pleadings submitted to the family law court are for an improper purpose, such as to harass, cause unnecessary delay or to needlessly increase the cost of litigation
- The claims or defenses are not warranted by existing law
- The allegations do not have and are not likely to have evidentiary support
- The denials of factual contentions are unwarranted