Can the court award you legal fees in a custody battle?

Whether or not you get physical custody of your child shouldn't have to depend on something like whether you can afford a better lawyer than your spouse.

In some states, that's exactly what happens. Custody battles become a war of attrition, with one side laying legal siege against the other. The spouse with more money and the bigger legal team will file motion after motion and request after request, basically to drag out the process as long as possible until the parent with the least amount of income either gives up or runs out of funds to keep fighting.

However, in California, Family Code 2030-2032 provides a solution to that problem. There are some key provisions you should understand:

1. You can make the request and receive and order awarding attorneys' fees and costs even if you have enough money to afford legal representation of your own.

The court doesn't just look at whether or not you have the ability to provide for the bare essentials -- it looks at the potential disparity between your spouse's wealth and your wealth.

If you can afford a general lawyer without any special experience in child custody but your spouse is able to afford not only a top-notch child custody attorney but a team of expert witnesses and psychologists to help bolster his or her case, you can get the court to order your spouse to provide you with the funds to match up the legal teams.

2. The court can make your spouse pay your attorney fees out of any type of property or income.

It doesn't matter if you have no community property or income -- or even a prenuptial agreement that limits what you are financially entitled to have. The court can still order the funds for the attorneys' fees to be taken out of your spouse's separate property or income.

3. If your spouse does try to play a game with the court, causing excessive delays and generally trying to make the whole process as financially expensive as possible, the judge can order your spouse to pay some of your attorney fees and costs.

Because this is a sanction against your spouse's bad behavior, you don't have to prove financial need.

For more information on how you can level the playing field in a custody battle with a wealthier spouse, talk to your attorney today.

Source: California Legislative Information, "Family Code Chapter 3.5 Attorney's Fees and Costs - (2030 - 2034)," accessed May 26, 2017

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