Attorney's Fees and Costs

Question: Do I have to pay for my wife's attorney or can the court appoint her a free one?

Question Detail: I served my wife with divorce papers and asked her to meet up with my lawyer so she can straighten everything out for us. She refuses and said that I have to get and pay for her lawyer. She only works part time but and I don't have the money either. I pay all the bills and have two kids. Can't she get a lawyer from the court?

The court in family law cannot appoint an attorney. You are only entitled to have an attorney in a criminal proceeding. There is no family law equivalent to a public defender. However, each party is entitled to have an attorney if they want and can afford one. There are several statutes that allow the court to order one side to pay for an attorney for the other side, but the most relevant one to you will be Family Code Section 2030, which states:

" (a) (1) In a proceeding for dissolution of marriage, nullity of marriage, or legal separation of the parties, and in any proceeding subsequent to entry of a related judgment, the court shall ensure that each party has access to legal representation, including access early in the proceedings, to preserve each party's rights by ordering, if necessary based on the income and needs assessments, one party, except a governmental entity, to pay to the other party, or to the other party's attorney, whatever amount is reasonably necessary for attorney's fees and for the cost of maintaining or defending the proceeding during the pendency of the proceeding. (2) When a request for attorney's fees and costs is made, the court shall make findings on whether an award of attorney's fees and costs under this section 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. If the findings demonstrate disparity in access and ability to pay, the court shall make an order awarding attorney's fees and costs. A party who lacks the financial ability to hire an attorney may request, as an in pro per litigant, that the court order the other party, if that other party has the financial ability, to pay a reasonable amount to allow the unrepresented party to retain an attorney in a timely manner before proceedings in the matter go forward. (b) Attorney's fees and costs within this section may be awarded for legal services rendered or costs incurred before or after the commencement of the proceeding"

While there are other statutes that allow for the transfer of funds to pay attorney's fees, this is the most common section used. Note that you can get an award of fees before you have actually hired an attorney, so use of this section can get you the retainer you need to hire a quality attorney.

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