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Getting your ex-spouse to pay attorneys' fees in the divorce

One of the most common questions individuals ask when they are seeking a divorce is how will the attorney's fees be paid. In most civil cases, courts follow the so-called American rule and require the parties to pay their respective attorneys' fees. The same rule usually applies in divorce cases, but California law contains three important exceptions that may allow one party in a divorce to recover attorneys' fees from the other party.

If the economic situations of the two parties are vastly different, the court may order the spouse with more assets to pay for the other spouse's lawyer. Such an order is not intended as a penalty; rather, courts use the rule to create a level playing field on which both parties will be represented. Other cases in which the court may order one party to pay the attorneys' fees of the other party include paternity disputes, applications for restraining orders, enforcement of an order requiring the payment of child support and situations in which the court finds that one party's income and needs preclude payment of attorneys' fees.

The third category is an order to pay attorneys' fees as a penalty. A party against whom a restraining order is issued may be required to pay all or part of the attorneys' fees of the party who sought the order. Payment of attorneys' fees in this situation will be ordered only if the party seeking the restraining order is successful. Payment of attorneys' fees may also be ordered as a penalty for defying a court order or other conduct that violates the rules of conduct that apply in divorce cases. A common example is the hiding of information about assets or income. A person who lies to the court or the other party about the worth of assets or the person's income may be required to pay attorneys' fees, court costs and other expenses necessitated by the conduct.

Anyone who feels they should be reimbursed for attorneys' fees in a divorce should consult an experienced divorce lawyer (if the person is not already represented) for advice on the types of conduct or financial situations that will persuade a court to order the payment of attorneys' fees by the other party.

Source: California Courts The Judicial Branch of California, "Asking for Lawyer's Fees and Costs in Family Law Cases," accessed on March 6, 2018

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