In marriages when one spouse is the primary breadwinner, it is common for that individual’s income to meet both spouses’ needs. Although this is typically acceptable when the couple is happily married, it may not be the case when divorce proceedings begin. It can understandably become less desirable to provide financial support to a soon-to-be ex-spouse.
One area where this tends to be especially true is legal fees – specifically, the legal fees owed to the non-earning spouse’s divorce attorney. The question becomes whether your spouse can use your joint assets (i.e. your previously-earned income) to pay for his or her attorney’s fees.
Using Joint Assets to Pay Attorney’s Fees in a Divorce
When married couples file for divorce, certain automatic temporary restraining orders (ATROs) may apply throughout the divorce proceedings. One of these ATROs states that neither spouse may:
“in any way dispose of any property, real or personal, whether community, quasi-community, or separate, without the written consent of the other party or an order of the court, except in the usual course of business or for the necessities of life.”
Although the specific language leaves some room for interpretation, the law behind the ATRO clarifies that it is permissible to use joint assets to pay for legal fees and costs associated with a divorce. (California Family Code Section 2040) states:
“Nothing in the restraining order shall preclude a party from using community property, quasi-community property, or the party’s own separate property to pay reasonable attorney’s fees and costs in order to retain legal counsel in the proceeding. A party who uses community property or quasi-community property to pay his or her attorney’s retainer for fees and costs under this provision shall account to the community for the use of the property.”
Requiring One Spouse to Pay Attorney’s Fees and Costs
The California Family Code allows the court to order a higher-earning spouse to cover both parties’ legal fees and costs if there are sufficient joint assets available and the spouse does not earn enough to pay his or her own fees. The spouse seeking financial assistance must make this motion. In making its decision on such a motion for payment of attorney’s fees and costs under Section 2030, the court will look at three factors:
- “Whether an award of attorney’s fees and costs . . . 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.”
Call an Experienced Central Valley Divorce Attorney
If you are involved in a divorce proceeding or planning to file for divorce, it is in your best interest to consult with an experienced family law attorney to help you learn your legal rights and options with respect to the division of your assets.