In California each party is entitled to ask the court to order the other party to pay their fees. The request can be made any time, up front, during the pendency of the case, at time of judgment or at any post judgment proceeding.
Attorney's fees and Costs Awards
A common misconception is the court awards fees to the "prevailing party." This is not the case. They are "need based", meaning the low earner or person with no assets is likely to be "awarded" fees from the other to allow them to pay their attorney.
The courts usually take up fee awards at both the initial hearing re temporary support orders and then at the time of trial. They don’t like to address them at other times although they frequently do. It is important to note that the courts frequently look to a person’s earnings "post support" when deciding if the other is truly the low earner. For example: If one spouse earns $6,000 per month but pays the other who earns $2,000 per month $2,000 in support, the court would consider them even, and probably not award fees, at least at the beginning of the case.
An experienced attorney is critical to success in the fee context because there are several statutory requirements to obtaining one, and almost all judges have different perspectives on what is fair. For example: Some judges look to available liquid assets like a savings account. If there isn’t any available, they just don’t award fees. Some look strictly to how much one earns, some what is earned in addition to what the support is and so on. An attorney who is familiar with the judge’s preferences will be able to punctuate those things that trigger a judge’s interest, in the case of a person who needs fees, or deflect the judge’s interest away in the case of a person who might have to pay.
An experienced attorney will also be mindful of the less preferred basis upon which a judge can award fees, those cases in which the court determines one or the other parties or their attorneys has "engaged in behavior which frustrates the intent of the law to promote settlement of litigation." These fees are awarded against a party for frivolous, delaying or harassing tactics but are not preferred by the courts because they could engender litigation totally unrelated to the facts. Suffice it to say an experienced attorney conducts themselves professionally, stays focused on the relevant issues, and is reasonable in their assessment of the case so as not to expose their clients to an award of this type.
Our office has never, in 25 years, been sanctioned by any court, and has no record of discipline with the State Bar. Call us and let us describe to you the potential that your fees might be borne by the other party.
The Law Offices of Michael J. Smith are located directly
across the street from the Ventura County Court House
789 S. Victoria Avenue
Ventura, CA 93003
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