By Marlo Van Oorschot
Van Oorschot Law Group PC
You hear it all the time and it’s often true. People talk about their attorney’s fees, specifically how expensive the divorce was; how unfair it was that fees were incurred because the other side acted litigiously and even cruelly, and how the other side had all the money to pay for the attorney’s fees.
They describe the financial inequity in the divorce and the financial destruction the divorce caused in their lives. What they may not discuss is that there are specific parameters, rules, and analyses that drive the court’s decision-making process regarding both attorney’s fees and sanctions.
While the actions or facts leading to incurring and the payment of attorney’s fees may differ, the end results in the quest to obtain attorney’s fees and/or sanctions is the same, i.e., a form of monetary compensation or recoupment of fees incurred in the family law action from one party. However, the pursuit to obtain either involves different standards and burdens of proof.
Below are a few examples illustrating the key differences between a request for attorney’s fees and a request for sanctions.
Attorney’s Fees May Be Based on a Party’s Need; Sanctions are Not.
Hypothetical: During the marriage, Wendy did not work outside the home but instead cared for the children and the home. Henry worked outside of the home and was the sole income earner. Now that Wendy and Henry are divorcing, Wendy does not have access to funds to pay her attorney while Henry has income from his job and therefore can pay for his attorney. Can Wendy seek fees from Henry?
Answer: Yes. At any time in a family law matter, the court may award attorney’s fees payable by one party to the other based on a party’s “need” for such fees.
The party seeking fees must be able to demonstrate with credible evidence a disparity in access to pay for legal representation. Indeed, in many cases, a need-based award to “level the playing field” between the parties during the pendency of the family law matter is virtually mandatory.
However, this does not mean that a court will order a dollar-for-dollar award for fees, but rather that the court will likely order one party to make some monetary contribution to the other party to ensure that both parties are able to maintain and adequately represent themselves. The need-based standard is not applied to a request for sanctions.
The Ability to Pay v. the Unreasonable Burden
Hypothetical: Henry has a checking account and stocks he could easily sell to pay Wendy’s fees; does this matter in Wendy’s fee and sanction request?
Answer: Yes. In the request for attorney’s fees, the court will consider whether the party opposing the fee request has the ability to pay the fees. For example, the court will contemplate whether there is a source from which to pay the attorney’s fees; the party’s income and expenses; and/or whether the party is able to afford their own legal representation. In a sanction request, the court must consider whether the order of sanctions places an unreasonable burden on the party ordered to pay.
Determination of the Reasonableness of the Fees v. Reasonableness of the Behavior of a Party
Hypothetical: Wendy is seeking $20,000 in fees from Henry. Does it matter that Wendy’s lawyer did not justify her fee request with past billing records or an explanation as to why Wendy needs $20,000 in fees from Henry? Wendy is also seeking sanctions against Henry for refusing to answer her settlement proposal. Does Henry’s behavior matter?
Answer: Yes. Wendy’s request for fees may be denied due to her failure to justify the reasonableness of her fee request, and Henry’s actions will also be assessed by the court.
One of the standards a court will consider when awarding attorney’s fees (besides the need for a contribution of fees and the other’s ability to pay) is whether the fees incurred by the party seeking the fee order were reasonably incurred. This means the court will want to see an attorney’s billing statements; will want to understand how the fees were incurred or will be incurred in the action; and will want to consider the reasonable value of the services rendered by the attorney.
By comparison, in a request for sanctions by one party against the other, the court is not determining the reasonableness of the fees incurred but is left to determine whether a party engaged in conduct that violated the Family Code’s policy to promote settlement and reduce litigation costs.
For example, the court will consider whether a party took unreasonable positions; whether a party was uncooperative, non-responsive and so difficult that a party was forced to incur additional attorney’s fees to simply move the case forward, or whether a party made false accusations causing the accused party to incur costs in having to defend the accusation. Here, the court will not be looking at the actual fees incurred in a request for sanctions but rather the behavior of the party.
Like any form of litigation, to obtain attorney’s fees or sanctions from the other side, a motion must be filed with the court. There is an expense associated with preparing, filing, and appearing in court for this motion. So, before one spends money to get money, make sure to assess the expense of the motion with the potential outcome so as not to fall into a trap of being penny-wise and pound-foolish.