The Wealthy Ex and An Even Playing Field

We frequently get the following scenario: a spouse wants a divorce (or has been served with divorce papers), but is fearful of an unfair playing field because their soon-to-be-ex-spouse has a lot of money to spend for their attorney.

Fear not! This type of scenario is exactly why the Legislature enacted Family Code §2030.

Family Code §2030(a)(1) states:

(a)(1) In a proceeding for dissolution of marriage, nullity of marriage, or legal separation of the parties, and in any proceeding subsequent to entry of a related judgment, the court shall ensure that each party has access to legal representation, including access early in the proceedings, to preserve each party’s rights by ordering, if necessary based on the income and needs assessments, one party, except a governmental entity, to pay to the other party, or to the other party’s attorney, whatever amount is reasonably necessary for attorney’s fees and for the cost of maintaining or defending the proceeding during the pendency of the proceeding.

You may be thinking, “Great, but how does that help?” Good question, and your answer is found in the next subsection (Family Code §2030(a)(2)):

(2) When a request for attorney’s fees and costs is made, the court shall make findings on whether an award of attorney’s fees and costs under this section is appropriate, whether there is a disparity in access to funds to retain counsel, and whether one party is able to pay for legal representation of both parties.  If the findings demonstrate disparity in access and ability to pay, the court shall make an order awarding attorney’s fees and costs.  A party who lacks the financial ability to hire an attorney may request, as an in pro per litigant, that the court order the other party, if that other party has the financial ability, to pay a reasonable amount to allow the unrepresented party to retain an attorney in a timely manner before proceedings in the matter go forward.

This means that a party may receive an award of attorney’s fees and costs from the other party, so long as two conditions are met:

  1. There is a disparity in access to funds to retain counsel; and
  2. One party is able to pay for legal representation of both parties.

In English?

  1. Does your ex have more access to money; and
  2. Does your ex have the ability to pay for both attorneys?

Simply put, if your ex has access to more money than you and has the ability to pay for counsel of both parties, you are likely to receive an award of attorney’s fees and costs.

In most cases, the request must be made by motion on notice or by an order to show cause, which should include supporting materials, such as a current Income and Expense Declaration and a declaration describing the factors set out in Family Code §4320.

To find out more about Family Code §2030, or to speak to a family law attorney about your case, contact The Zarin Law Firm today.