Saturday, April 16, 2011

WHO HAS TO PAY ATTORNEY'S FEES IN A DIVORCE?

I frequently receive questions from people regarding their family law issues. The following is a question which the inquirer agreed may be publicly revealed, and my answer to the question:

QUESTION: I am not yet divorced, but my ex moved out a year ago. We both have full time jobs, but I earn more. I know that she is hiding income for the purposes of getting a larger child support award for our MSA. I understand that to prove this, I'll have to get an attorney and enter into a messy process. If we are not yet divorced, will I end up paying her attorney's fees because of her lower income? If it is found that she is hiding income or not earning at her capacity, will this give me grounds for not paying her fees?

ANSWER: If your wife earns less than you do, she can seek an order for payment of attorney's fees and costs by you, to "level the playing field", but it is unlikely under your fact scenario that you will have to pay all of her fees, since she does earn income.

You should retain an experienced Family Law Attorney to advise and represent you in your divorce case.

If your wife is hiding income, your attorney can perform formal discovery and serve subpoenas in an effort to discover her hidden income.

If your wife is paid in cash and there is no paper trail reflecting invoicing, billing, payments, ledgers, etc., it may be difficult or impossible to discover or prove her hidden income - but if her Income or Expense Declaration or your evidence reflects that her expenditures exceed her claimed income, that could influence the Court regarding her lack of candor, as well as her fee or support request.

If you can prove that your wife is hiding income, you can seek Family Code Section 271 sanctions against her.

In order to prove that your wife is not earning at her capacity [which would be relevant on support issues, but a court may find that not to be relevant on attorney's fee issues], you would likely need to file a Motion to have her submit to a Vocational Examination by a Vocational Training Consultant (unless she Stipulates to an Order requiring such an examination), but you will likely have to bear the cost of the evaluation. If your wife is found not to be earning at her capacity, it could affect support issues, but that may not influence the Court on attorney's fee issues, which are based on need and ability to pay.

This educational blog is brought to you by DONALD F. CONVISER, an effective and aggressive Los Angeles Family Law Attorney and Divorce Lawyer serving clients in the courts of Los Angeles and Ventura County for over 35 years,owner of Warner Center Law Offices, with offices in Woodland Hills and Century City. Call 888.632.4447 or 818.880.8990 for a free confidential consultation with a Certified Family Law Specialist to discuss your divorce or family law issues. | www.conviser.net | www.conviserfamilylaw.com |

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