Access to an Attorney and the Real Cost of Self Representation
During my 33 years as an attorney practicing Divorce and Family Law in California, I’ve witnessed many changes in the rules controlling how our courts manage these cases. By far, one of the most important family law changes to date concerns getting court orders for attorney fees enabling a person to acquire and maintain an attorney to represent them in their case.
Over the years, greater numbers of people have elected out of economic limitations to be self represented in their family law matters. These people (referred to as pro per litigants) struggle through the complexities of the legal system in their effort to get the financial and legal help that could be afforded to them by the courts.
The courts require all self-represented people be held to the same standard of care as an attorney when they manage their legal matters. True, over the years, there has been an increase of courthouse self help centers and paralegal services that assist the self represented person in typing up information on the court paperwork, but these court and private services can never replace the huge benefit a litigant derives when they have an attorney by their side as they journey through their family law case.
I’ve encountered many self represented people in my office coming to me after a judge heard their case hoping that I can fix what went wrong in their case. Many times, the case suffered due to the self-represented parties’ inability to stand up to the other party who had representation by counsel. I’ve heard the stories of numerous painful examples where a person lost support benefits, a parent child relationship or property rights just because they could not manage the responsibilities of their case or understand their legal rights.
The courts are encountering an ever increasing burden and backlog of time sensitive cases not only due to the climbing number of caseloads coming into the California Family Law courts but also due to the problems the court suffers in having limited resources to manage cases where one or both people are self represented.
With the new addition to existing Family Code 2030, those days of being outgunned by the other side because they have greater financial resources may be waning.
Family Code 2030 and the Changes
Effective January 1, 2011, a very important change has occurred to the rules that family courts apply in deciding whether and when to award attorney fees to spouses (and domestic partners). The rule change is an effort to remedy the attorney fee problem for the person who may have a relative inability to access the funds necessary to secure a skilled family law attorney.
The revised Family Code 2030 is a welcome and much needed change in the California law impacting attorney fee awards in proceedings that take place in Family Courts. This statute is intended to assist parties who historically have been the “out spouse” or “out partner” in marriages and domestic partnerships.
This category of litigant suffers from the inability to hire or keep an attorney by reason of the fact that they may lack independent wealth or assets, may not during the relationship have control or management over the community property assets, or are people who are otherwise suffering limited access to funds as are required to properly conduct litigation and protect their legal rights and interests.
Without money people cannot hire an attorney that can represent them. This lack of legal assistance effectively creates an imbalance of power that directly affects the presentation of a case to the courts. Self represented litigants like any attorney are obligated to understand the local rules of court, file proper pleadings in a timely fashion, ask for and reply to motions and otherwise handle every aspect of their case as effectively as the attorney representing the other party if they hold any hope in getting the best outcome in court.
In the past, Family court judges were too often not responsive to the plea for attorney fees from a party with fewer resources than their opponent.
As a result of this attorney fee imbalance, a task force referred to as the Elkins Task Force embarked upon a yearlong study of this issue and other concerns unique to the family law courts. The probe included obtaining input from jurists, lawyers, and family law specialists among others on the problem of getting sufficient attorney fees to have proper representation and access to the courts.
The effect of the of the task force findings and the resulting new amendment may mean an end to the era when one spouse or party to a family law case was able to grab or control community funds and thereby financially starve the other party out in the course of litigation.
Family Code section 2030 as amended changes judicial policies that include:
The family law judge, in facilitating access of attorney representation by parties early on in the proceedings should be encouraged by the courts. Attorney fee awards should be granted help to accomplish this. The statute recognizes that cases are more likely to settle when people begin with a parity of access to resources and each having an attorney, and that this equal standing can facilitate case settlement. FC §2030(a).
This provision allows for a party in need to petition the court at the early stage of the case for the attorney fees and costs required to manage their end of the case with the assistance of counsel
Judges must specifically state findings on whether an award for attorney fees and costs is appropriate, including an inquiry into the question whether there is a disparity in access to funds to retain counsel, and whether one party is able to pay for the legal representation of both parties. FC §2030(b). This revision directs trial courts to apply a variation of the disparity of earnings analysis.
What this provision allows for is for fees to be awarded to a party who does not make the same money as the other person. The statute also allows the court to explore what additional resources may be available to the other spouse that could be accessed, sold or liquidated to pay fees to the requesting party in need of attorney fees.
Conclusion
The true test of this amended fees statute is how the courts will be applying the new rules to cases where one side from the other seeks fees. Cases where the better financed party has a higher income, separate property not part of the marriage and other resources that are greater than those of the requesting party deserve fees awards to assist them in protecting their legal rights.
This attorney fee award approach will have a direct benefit on the courts as well. If skilled family law attorneys represent more people going through the family law courts, those cases will be managed in a smoother fashion thereby creating less of an administrative burden on the courts. The goal is always to empower the parties to settle their cases. In order to do so, each party deserves the benefit of counsel so they can understand their legal rights as well as protect them.
The Law Offices of Arlene D. Kock are located in San Ramon, California. The firm practices primarily in the areas of family law and civil litigation. Ms. Kock is also a member of the LawGuru Attorney Network.