During a marriage it is not uncommon for one spouse to be the primary provider while the other takes care of the home. During a divorce though this type of relationship may cause difficulties as
However during a divorce this can create inequalities for the spouse who was not the primary provider. In California the law has reacted to this disparity by giving courts the discretion to order one party to pay for the attorneys fees and costs of the other party.
In California one party may be held to pay for the fees and costs of the other in three ways:
(1) Need Based
(2) Sanctions
(3) Contract
Need based allows the court to ensure both parties have the opportunity to obtain equal representation. Under California Family code 2030, the court is entitled to order payment of fees and costs between the parties based on "relative circumstances." The court will look at respective income, needs and ability to pay to make sure both parties have adequate legal assistance.
Sanctions may be awarded as punishment for conduct during the proceedings. If a party refused to comply with financial discovery or purposefully delayed the proceedings the court may award fees and costs to punish the conduct.
The amount of attorney's fees will vary based on which type is granted. Need based must be a reasonable amount calculated by the court to maintain or defend the case. The amount for sanctions is limited by parties ability to pay. Since it is punishment the amount is based on how much is necessary to prevent future conduct.
It is also important that either may be given during an action for dissolution, nullity, legal separation, modification or enforcement. In addition the award may cover all costs associated with the proceedings.
The last way attorneys fees may be ordered is through contract. Many marital and custody agreements contain a clause that allows a prevailing party to recover fees in an action to enforce the agreement. Unlike the other two methods which give the court broad discretion this is enforced as a private contract between the parties. So long as the contract is enforceable then an award of fees and costs must be granted.
The costs of divorce and family law fees can add up quickly. Without statutes allowing courts to award attorney's fees many parties would be unable to bring suits to enforce their rights. If you are facing divorce issues and there is a substantial disparity of wealth between you and the other party an attorney may help you determine if you are entitled to have you fees paid for.
Monday, March 8, 2010
Tuesday, March 2, 2010
Considering Mediation during a Divorce
One of my primary goals when helping a client is minimizing the conflict and cost associated with their divorces. To do this it is important to consider alternatives such as mediation.
If you are considering or are in the middle of a divorce it is important to understand every option you have. As part of your divorce you will be required to resolve child custody, support and how to divide your community property. Mediation may offer its own challenges, but if you are open to the possibility you may find a more personal result at a fraction of the cost.
In recent years mediation has come to play an important role in numerous areas of law including family law and divorce. This was probably inevitable as the courts continues to be bombarded with an unending caseload and court budgets continue to be cut. The courts work very hard to give everybody the time they deserve, but due to a lack of resources and time, judges are pressured to move through cases quickly.
Mediation offers an alternative to this approach which may be impersonal and costly. There will be issues common to most divorces, but there will also be some unique to you. The court will try to understand your case, but they cannot understand the nuances of your family that only become evident after living together for years. This day to day knowledge makes you the best candidate to decide how to meet the needs of your family. Mediation allows you to do exactly that. You can consider the special needs of you and your children to find creative solutions to your custody, support and property issues.
Mediation may not be perfect for every case, but I believe that it should always be considered before moving on to more hostile and expensive methods to resolve your divorce issues.
If you are considering or are in the middle of a divorce it is important to understand every option you have. As part of your divorce you will be required to resolve child custody, support and how to divide your community property. Mediation may offer its own challenges, but if you are open to the possibility you may find a more personal result at a fraction of the cost.
In recent years mediation has come to play an important role in numerous areas of law including family law and divorce. This was probably inevitable as the courts continues to be bombarded with an unending caseload and court budgets continue to be cut. The courts work very hard to give everybody the time they deserve, but due to a lack of resources and time, judges are pressured to move through cases quickly.
Mediation offers an alternative to this approach which may be impersonal and costly. There will be issues common to most divorces, but there will also be some unique to you. The court will try to understand your case, but they cannot understand the nuances of your family that only become evident after living together for years. This day to day knowledge makes you the best candidate to decide how to meet the needs of your family. Mediation allows you to do exactly that. You can consider the special needs of you and your children to find creative solutions to your custody, support and property issues.
Mediation may not be perfect for every case, but I believe that it should always be considered before moving on to more hostile and expensive methods to resolve your divorce issues.
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