Asking for Lawyer’s Fees and Costs in Family Law Cases

Types of Lawyer's Fees

There are several types of situations when a judge can order one side to pay the other side's lawyer's fees. In divorces or legal separations, a spouse or domestic partner can make that request in court from the very beginning of the case. There are other family law cases, even if the parties involved are not married or in a domestic partnership, when one side can ask for lawyer's fees. Some examples include custody and visitation cases where the parents are not married to each other, child or spousal support cases, and domestic violence cases. There is a third situation, all cases, when one side can ask the judge to order the other side to pay a sanction (a fine or a penalty) for doing something illegal or unethical.

Before you follow the instructions further below to ask for lawyer's fees, find out more about what type of lawyer's fees case you have.  Click on the topic below that applies to you to learn more. If you are not sure, read about all 3 topics, or talk to a lawyer or your family law facilitator.

The law gives people in divorce, legal separation or annulment cases the right to ask the judge to order one side to pay the other side’s lawyer’s fees (attorney’s fees) and costs. The purpose of an order for lawyer’s fees is not to punish one side or reward the other, but to even the playing field so both sides can have access to a lawyer.

The law allows this so both sides may be able to get legal representation. This means that you have the right to ask the court to order your spouse or domestic partner to pay for part or all of your lawyer’s fees and costs in order to allow you to hire a lawyer.  The law allows this even if you do not (yet) have a lawyer representing you.

If you already have a lawyer, ask your lawyer about filing a request.

If you do not have a lawyer and are, for now, representing yourself, read this section for more information.

When you ask the judge to order lawyer’s fees, the judge will consider:

  • both parties' income and needs,
  • any imbalance in both parties’ access to money to hire a lawyer, and
  • if  one party is able to pay for a lawyer for both.

The judge’s decision and the amount he or she orders must be just and reasonable. This means that even if one side can afford a lawyer but the other side has a much higher income or ability to pay, the judge may order the side with more money to pay the other’s lawyer. You can read more about this law in Family Code sections 2030 and 2032.

Keep in mind:

  • If you think your spouse or partner can afford to help pay for your lawyer’s fees and costs, you can ask the judge for an order right away.
  • You do not have to have a lawyer at the time that you to ask the court to order your spouse/partner pay your lawyer fees. The judge can order one side to pay a reasonable amount to hire a lawyer as early as possible before the case goes forward.
  • If you are being represented by a free or low cost lawyer (like a legal aid lawyer), you can still ask for the other side to pay your lawyer’s fees, even if you have not paid anything. Your lawyer will do this for you.
  • An order for lawyer’s fees is not a one-time thing. You can ask for what you will need initially, and later if you need more, file another request to ask for an increase or a change in the court order.
  • Once the court enters a Judgment on all the issues in your case and  your divorce, legal separation or annulment is final, you will not be able to get an order for lawyer’s fees for work that was done beforehand.
  • If you go back to court to ask to change an order in the Judgment (for example, to ask to change child custody or child support orders in the Judgment), you can ask that the other party pay your fees for lawyer services or costs you incurred related to the request to change the Judgment.
  • You have a right to have the other side pay your lawyer’s fees even if the court does not make the orders you wanted.

The amount the judge will order depends on you and your spouse or partner’s circumstances. It is the judge’s decision, and judges are given a lot of leeway in making the decision.

There are other types of situations in family law cases (not just divorces) where the judge may order one side to pay the other’s lawyer’s fees and costs, based on the parties’ income and needs. Here are some common situations where lawyer’s fees may be ordered:

  • You and the other parent are not married and you need to establish parentage/paternity or custody and visitation orders. Read more in Family Code §7605.
  • You and the other parent are married, are not filing for divorce or legal separation, but you want to file for child custody. Read more in Family Code §3121.
  • You are asking for a restraining order and you need help paying for your lawyer’s fees. Read more in Family Code § 6344.
  • You need to go to court to enforce a child or spousal support order and you need help paying for a lawyer. Read more in Family Code §3557.
  • You are owed child support and you need to establish, modify or enforce a child support order from another state in California, and you win your case and need help paying for lawyer’s fees. Read more in Family Code §4919.
  • You go to court to ask for an order changing, ending, or canceling (setting aside) a child or spousal/partner support order. Read more in Family Code §3652.

There are also instances in divorces and legal separations where the judge may order one side to pay a sanction (like a fine) because he or she behaves in an illegal or unethical way. Examples include situations where one party:

  • Files a frivolous action (something that clearly has no legal basis or merit)
  • Withholds required information or gives false information (like in financial disclosures or documents) or creates obstacles to resolving the case
  • Mishandles the couple’s community property or fails to disclose the necessary financial documents
  • Makes false accusations of child abuse

In these cases, the money the court orders one side to pay is usually called “a sanction.”  The purpose of sanctions is to punish the misbehaving party, regardless of the financial need of the other party (who has done nothing wrong). Talk to a lawyer for more information on these situations.

To Ask for Lawyer’s Fees

To ask the judge to order the other side to pay part or all of your lawyer’s fees and costs, you will have to ask for a court hearing and explain why you need the order.

To ask for a court hearing for lawyer’s fees in most family law cases, follow the instructions below. The forms you will have to fill out, especially Form FL-319 and Form FL-158, will guide you through a lot of the information the judge will need to make a decision based on the law. Make sure you fill out those forms completely and accurately. If you have any questions, talk to a lawyer or your court’s self-help center.  If you already have a lawyer ready to step in to help you, he or she may be able to help you fill out the forms correctly, even if they still want you to file the forms on your own.

Follow these steps:

1. Fill out your court forms.
    Fill out:

  • Request for Order (Form FL-300),
  • Request for Attorney’s Fees and Costs Attachment (Form FL-319)
  • Income and Expense Declaration (Form FL-150), unless you already completed one within the last 3 months and the information has not changed, and
  • Supporting Declaration for Attorney’s Fees and Costs Attachment (Form FL-158) or your own declaration that includes the factors covered in Form FL-158.

Make sure you use the right case number. It should be the case number that appears on your Summons or your Petition.

2. Have your forms reviewed
If your court’s family law facilitator or self-help center helps people with orders related to a divorce, ask them to review your paperwork. They can make sure you filled it out properly before you move ahead with your request.

3. Make at least 2 copies of your court forms.
Copy all of the forms listed under step 1 (including any attachments to any of the forms). One copy will be for you; the other copy will be for the other party. The original is for the court.

4. File your court forms with the court clerk and get your court date.
Turn in your forms (original and 2 copies) to the court clerk. File the original and 2 copies of all the court forms listed in Step 1 at the clerk’s office in the court handling your divorce or legal separation case.

  • The clerk will keep the original (for the court) and return the copies to you, stamped “Filed”.
  • You will have to pay a filing fee. If you cannot afford the fee, you can ask for a fee waiver.
  • The clerk will also give you a court date, on page 1 of your Request for Order (Form FL-300). That will be the court date when the judge will hear your request.

5. Serve the other party with a copy of your Request.
Have someone, 18 or older (NOT you), serve the other party with a copy of your papers and a blank Responsive Declaration to Request for Order (Form FL-320) and blank Income and Expense Declaration (Form FL-150).

  • You can have your spouse or domestic partner served by mail (unless the court ordered personal service or made temporary emergency orders that take effect before the hearing). Or you can serve it in person.  Remember, you cannot do the serving, whether by mail or in person.
  • If you have your Request served in person, it must be done at least 16 court days before the court hearing.
  • If you have them served by mail, you must do it at least 16 court days before the hearing plus 5 calendar days for mailing. Ask the family law facilitator if you are not sure if you can serve your papers by mail. If you are the Petitioner in the divorce, you cannot serve by mail if you have not yet served the other party with the Petition and the Summons.

Read Form FL-300-INFO for information on service or click to get more information about “service.” And look at the front of Form FL-300 to see if the court ordered you to serve any additional documents.

6. File your proof of service.
Have your server (the person or persons who mailed or hand-delivered your papers to the other party) fill out a proof of service (you can use Proof of Personal Service (Form FL-330) or Proof of Service by Mail (Form FL-335)) and give it to you so you can file it with the court. It is very important that your server fills out the proof of service correctly. If possible, have your family law facilitator or self-help center review it to make sure it was filled out properly.

7.  Go to your court hearing.
Go to your court hearing and take a copy of all your papers and your Proof of Service.

Read Going to Court to find out how to prepare for your court hearing.

After the court hearing

If the judge makes a decision at the court hearing, the judge will sign a court order. In some courtrooms, the clerk or court staff will prepare this order for the judge’s signature. In other courtrooms, it is the responsibility of the person who asked for the hearing to prepare the court order for the judge to sign. If either side has a lawyer, the lawyer will usually be asked to prepare the order.

If you have to prepare the order of the court, you will need to fill out the Findings and Order After Hearing (Form FL-340), and an attachment detailing the orders that the judge made.

Remember, the family law facilitator or self-help center may be able to help you with these forms. So ask for help or have the family law facilitator or self-help center review the forms to make sure you did not make any mistakes.

The judge may choose not to make a decision at the hearing. In that case, he or she has 15 days from the date of the hearing to make a decision. The court clerk will notify you when the judge makes the order. Just in case, call the court when the 15 days are up, if you have not heard anything.


To Respond to a Request for Lawyer’s Fees

If you received a Request for Order (Form FL-300) together with attachments asking you to pay the other side’s lawyer’s fees and costs:

  • Carefully read the papers you received to make sure you understand what the other side is asking for.
  • Note the date, time, and location of the court hearing. They are listed on the first page of the Request for Order. It is very important you go to this court hearing!
  • You must respond to the papers you received if you want the court to know what your position is about the lawyer’s fees and to provide your financial information. If you do not respond, the court may make orders without taking into account your financial situation or circumstances.
  • If you have a lawyer, take all your papers to your lawyer to handle the case for you. If you do not have a lawyer, talk to a lawyer if you want legal advice, someone to go to court with you, or other legal help. Click for help finding a lawyer.

Follow these steps:

1.  Read Information Sheet: Responsive Declaration to Request for Order (Form FL-320-INFO).

2. Fill out your court forms.
Fill out:

  • Responsive Declaration to Request for Order (Form FL-320),
  • Income and Expense Declaration Form FL-150), unless you already completed one within the last 3 months and the information has not changed, and a
  • Supporting Declaration for Attorney’s Fees and Costs Attachment (Form FL-158) or your own declaration that includes the factors covered in Form FL-158, where you tell the court whether you agree or not with the lawyer’s fees request, and give the judge your reasons for your position.

3.  Have your forms reviewed.
If your court’s family law facilitator or self-help center helps people with orders related to a divorce, ask them to review your paperwork. They can make sure you filled it out properly before you move ahead with your case.

4.  Make at least 2 copies of your court forms.
Copy all of the forms listed under step 1 (including any attachments to any of the forms). One copy will be for you; the other copy will be for the other party. The original is for the court.

5.  File your court forms with the court clerk and get your court date.
Turn in your forms (original and 2 copies) to the court clerk. File the original and 2 copies of all the court forms listed in Step 1 at the clerk’s office in the court handling your case.

  • The clerk will keep the original (for the court) and return the copies to you, stamped “Filed”.
  • You will not have to pay a filing fee to file the Responsive Declaration and its attachments. But if you have never filed any papers in this case, you may have to pay a fee for what is called a “first appearance fee,” which, in general, everyone has to pay when they file court papers in a case for the first time.  If you cannot afford the fee, you can ask for a fee waiver.

6.  Serve the other party with a copy of your Response.
Serve a copy of the Responsive Declaration to Request for Order (Form FL-320) and any other papers you attached, on the other side. Generally, time for service is at least 9 days before the hearing; however, check the first page of the Request for Order (Form FL-300) to find out of the court ordered a specific date by which to serve and file your papers You can have someone (NOT you) serve it by mail or in person.

You can have your forms served on the other side before the clerk stamps it — just make sure you do not serve the original.

Get more information about “service.”

7.  File your proof of service.
Have your server (the person or persons who mailed or hand-delivered the  papers to the other party) fill out a proof of service (you can use Proof of Personal Service (Form FL-330) or Proof of Service by Mail (Form FL-335)) and give it to you so you can file it with the court.

It is very important that your server fills out the proof of service correctly. If possible, have your family law facilitator or self-help center review it to make sure it was filled out properly. (If you had the other parent served with an unstamped copy of the Responsive Declaration, you can file the original of the Responsive Declaration and attachments together with the Proof of Service.).

8.  Go to your court hearing.
Go to your court hearing and take a copy of all your papers and your Proof of Service.

Read Going to Court to find out how to prepare for your court hearing.

After the court hearing

If the judge makes a decision at the court hearing, the judge will sign a court order. In some courtrooms, the clerk or court staff will prepare this order for the judge’s signature. In other courtrooms, it is the responsibility of the person who asked for the hearing to prepare the court order for the judge to sign. If either side has a lawyer, the lawyer will usually be asked to prepare the order.

If you have to prepare the order of the court, you will need to fill out the Findings and Order After Hearing (Form FL-340), and an attachment detailing the orders that the judge made.

Remember, the family law facilitator or self-help center may be able to help you with these forms. So ask for help or have the family law facilitator or self-help center review the forms to make sure you did not make any mistakes.

The judge may choose not to make a decision at the hearing. In that case, he or she has 15 days from the date of the hearing to make a decision. The court clerk will notify you when the judge makes the order. Just in case, call the court when the 15 days are up, if you have not heard anything.


 

© 2017 Judicial Council of California