In marriages with one primary breadwinner, the earning spouse’s income is used to meet both spouses’ needs. While this is generally acceptable when the marriage is happy and intact, once divorce proceedings begin, it can understandably become less desirable to provide financial support to a soon-to-be-former spouse.
One area where this tends to be especially true is legal fees – specifically, the legal fees owed to the non-earning spouse’s divorce attorney. Can your spouse use your joint assets (your previously-earned income) to pay? Can he or she pay with a joint credit card? Can you be forced to pay out-of-pocket as the process moves forward?
Using Joint Assets to Pay Legal Fees in a Divorce
Let’s first consider the option of your spouse using jointly-owned assets to pay divorce-related legal fees. In a previous post, we discussed the automatic temporary restraining orders (ATROs) that apply when one spouse files for divorce. One of these ATROs states that neither spouse may:
“in any way dispose of any property, real or personal, whether community, quasi-community, or separate, without the written consent of the other party or an order of the court, except in the usual course of business or for the necessities of life.”
While this language leaves some room for interpretation, the law behind the ATROs (California Family Code Section 2040) clarifies that using joint assets to pay divorce-related legal fees and costs is permissible:
“Nothing in the restraining order shall preclude a party from using community property, quasi-community property, or the party’s own separate property to pay reasonable attorney’s fees and costs in order to retain legal counsel in the proceeding. A party who uses community property or quasi-community property to pay his or her attorney’s retainer for fees and costs under this provision shall account to the community for the use of the property.”
Although not explicit in the law, it is well-established that non-earning spouses can use joint credit (provided that the credit does not create a new secured obligation) to pay their divorce attorneys as well.
Requiring One Spouse to Pay the Other’s Legal Fees
If sufficient joint assets are not available and one spouse does not earn enough to pay his or her own legal fees, the California Family Code includes a provision that allows the court to order the other spouse to cover both parties’ legal fees and costs. This involves a needs-based assessment, and an award of legal fees and costs can only be made on the motion of the spouse seeking financial assistance. When considering a motion for payment of attorneys’ fees and costs under Section 2030, the California courts look at three factors:
- “Whether an award of attorney’s fees and costs . . . is appropriate,
- “Whether there is a disparity in access to funds to retain counsel, and
- “Whether one party is able to pay for legal representation of both parties.”
Either spouse can file a motion for attorneys’ fees and costs at any time during the divorce proceedings, and the courts can “augment or modify” awards for attorneys’ fees and costs through and after the conclusion of any divorce-related appeals.
The California Family Code also includes a provision for non-need-based payment of legal expenses. Under Section 271, a court may order payment of legal fees and costs as a sanction for instigating legal proceedings that, “frustrate the policy of the law to promote settlement of litigation and, where possible, to reduce the cost of litigation by encouraging cooperation between the parties and attorneys.” When one spouse seeks sanctions under Section 271, the other has the opportunity to respond and oppose the motion before any legal fees or costs are awarded. Awards under Section 271 must be paid out of the paying spouse’s separate property or his or her share of joint assets (or “community property”).
Speak with North County and Downtown San Diego Divorce Lawyer Richard M. Renkin
If you are preparing for a divorce and would like to discuss your situation with an attorney, we encourage you to contact us for a confidential initial consultation. To request an appointment with North County and Downtown San Diego, CA, divorce lawyer and Certified Family Law Specialist Richard M. Renkin, please call 619-299-7100 or inquire online today.