One of the first questions many clients ask during a divorce is, “Can I make my spouse pay my attorney’s fees?” The short answer is maybe, depending on why you need the contribution or why you believe you should get it.
California family law contains several different statutes that allow a judge to order one party to pay some or all of the other party’s attorney’s fees. The catch is that each statute serves a completely different purpose. Some are designed to level the financial playing field. Others are intended to punish bad behavior. Others apply only in domestic violence cases.
Understanding which statute applies makes the difference between a successful fee request and one that is denied.
Family Code Section 2030: It’s About Fairness, Not Punishment
Example: One spouse earns $500,000 per year. The other stayed home to raise the children and has little or no income. Both have legitimate legal arguments regarding custody, support, and property division, but one spouse can afford a team of lawyers while the other is struggling just to pay an initial retainer. That is exactly the situation Family Code section 2030 was designed to address.
Section 2030 allows the court to order one party to contribute toward the other party’s attorney’s fees when there is a disparity in access to funds. The purpose is so that both parties have a meaningful opportunity to present their case.
Many people mistakenly believe they must be completely broke before they can request attorney’s fees. That isn’t true. The court looks at each party’s overall financial circumstances, including income, assets, and ability to pay. Even if both parties have resources, the court may still order a contribution if one party has substantially greater access to funds.
The important point is that Family Code section 2030 is not a punishment. It exists to ensure fairness.
Family Code Section 271: When Bad Litigation Conduct Gets Expensive
Now consider a different situation. One spouse refuses to provide financial documents, ignores court orders, files unnecessary motions, refuses every reasonable settlement proposal, and drags the case out for months of or even years. In that case, the court may order that spouse to reimburse the other for the attorney’s fees their conduct caused.
Family Code section 271 is California’s primary sanctions statute in family law. Unlike Section 2030, it has nothing to do with financial need. Instead, it is designed to encourage cooperation and discourage litigation tactics that unnecessarily increase attorney’s fees and waste time.
Judges routinely consider Section 271 when one party:
- Refuses to cooperate during litigation;
- Fails to comply with discovery;
- Needlessly delays the case;
- Ignores court orders;
- Takes unreasonable positions that increase litigation costs; or
- Engages in conduct that frustrates settlement.
The goal is not simply to punish someone for losing a motion. Rather, the court asks whether that person’s conduct caused unnecessary litigation and increased costs that could have been avoided.
Code of Civil Procedure Section 128.5: Reserved for Truly Frivolous Conduct
Although Family Code section 271 is the sanctions statute most frequently used in family court, it is not the only one. Code of Civil Procedure section 128.5 allows courts to sanction parties or attorneys who engage in frivolous litigation or actions taken solely to cause unnecessary delay. It is generally a much higher standard than Section 271.
A weak legal argument is not enough. Instead, the conduct usually must demonstrate bad faith, frivolous litigation, or a deliberate abuse of the judicial process. For that reason, requests under Section 128.5 are less common than those brought under Family Code section 271.
Family Code Section 6344: A Different Rule for Domestic Violence Cases
Domestic violence restraining order proceedings operate under an entirely different fee statute. Family Code section 6344 reflects California’s strong public policy of ensuring that victims of domestic violence have meaningful access to the courts.
If a party successfully obtains a domestic violence restraining order, the court generally may award reasonable attorney’s fees upon request, provided the statutory requirements are met.
A party who successfully defeats a restraining order request may also request attorney’s fees, however the burden of proof is higher. That party generally must prove that the request for the restraining order was frivolous or brought solely to harass, intimidate, or cause unnecessary delay.
This distinction exists because California law seeks to encourage victims of domestic violence to seek court protection without fearing that they will be ordered to pay the other side’s attorney’s fees if they do not prevail.
So Which Attorney’s Fee Statute Should You Use?
The statute you should use to request attorney’s fees depends on why you’re asking for the contribution. If your spouse has significantly greater financial resources, Family Code section 2030 may provide the relief you need. If your spouse has unnecessarily driven up litigation costs through unreasonable conduct, Family Code section 271 may be the better option. If the conduct rises to the level of frivolous or bad-faith litigation, Code of Civil Procedure section 128.5 may also come into play. And if your case involves the Domestic Violence Prevention Act, Family Code section 6344 governs attorney’s fees.
In many cases, more than one statute may apply simultaneously. An experienced family law attorney will evaluate the facts carefully to determine which statutory basis, or combination of statutes, is most appropriate.
The Bottom Line
Attorney’s fee requests are about far more than simply asking the court to reimburse legal bills. Each statute has its own purpose, legal standard, and evidentiary requirements. Choosing the correct legal basis can significantly affect the outcome of your request.
At The Soleymani Law Firm, APC, we regularly seek and defend attorney’s fee requests under Family Code sections 2030, 271, and 6344, as well as Code of Civil Procedure section 128.5. Whether you are seeking financial assistance to retain counsel or requesting sanctions for litigation misconduct, we can help you evaluate the strongest legal basis for recovering attorney’s fees in your case.