The difference between need-based attorney fees and sanction-based attorney fees in California family law courts.

There are two types of attorneys fees and costs awards: one based on need, and one as a sanction. Need based attorney fees/costs are controlled by FC 2030   Sanctions based attorney fees/costs are under FC 271.

Need based attorneys fees and costs:

California Family Courts are authorized to make an order requiring any party to litigation to pay a reasonable portion of the opposing party’s attorney’s fees, so that the latter can maintain or defend a proceeding. To make this award, the courts consider the relative circumstances of the parties pursuant to F.C. 2032(b). This is referred to as the “need versus ability to pay” analysis, which has been codified in F.C. 2030(a).

For need based attorney fees the moving party has to file a FL-150 income and expense declaration, a FL-300 Request for Orders, a declaration explaining why you need the award and why it is appropriate in your case. You need to attach forms FL-319 and FL-158 to your Request for Orders or declarations which address the information requested on the forms. Commonly, you will include a declaration from your attorney (or attorneys) stating, among other things, their hourly rate, what work they have done to date and what they expect to do in the future. In section 6 of the FL-319 form there is a comprehensive list of the data which the court needs that is usually provided in the attorney’s declaration.

Sanction based attorneys fees and costs:

FC 271 provides that, notwithstanding any other provision of the Family Code, a court “may base an award of attorney’s fees and costs on the extent to which the conduct of each party or attorney furthers or frustrates the policy of the law to promote settlement of litigation and, where possible, to reduce the cost of litigation by encouraging cooperation between the parties and attorneys.”

For sanction base attorneys fees and costs, you still need a a FL-300 Request for Orders, and a declaration from your attorney explaining what they did, what they charged, and why the work was necessary. Either you or the attorney will provide evidence of the sanctionable conduct of the adverse party in their declaration.

Are sanctions under FC 271 the exclusive sanctions available in a family law case?

No. Sanctions under FC 271 are not the only sanctions. In fact, a better approach is to seek sanctions under Cal Code Civ Proc 128.5. That statute is applicable to all civil cases including family law. Many family law attorneys fail to recognize that the California Code of Civil Procedure allows sanctions. FC 210 states that all the civil rules are applicable to actions under the Family Law Act.

CCP 128.5 states “A trial court may order a party, the party’s attorney, or both, to pay the reasonable expenses, including attorney’s fees, incurred by another party as a result of actions or tactics, made in bad faith, that are frivolous or solely intended to cause unnecessary delay.”

An important difference between CCP 128.5 and F.C. 271 is that CCP 128.5 allows sanctions, under the appropriate circumstances, to be awarded against adverse lawyer and/or the adverse party. F.C. 271 limits the award to the adverse party even if it is the adverse lawyer who was responsible for the sanctionable conduct.