In California Family Law, there are some exceptions to the rule that your ability to get your attorney’s fees paid by the other side are controlled by the parties’ respective needs and abilities to pay. One important exception is in Family Code section 271. It provides that, notwithstanding any other provision of the Family Code, a court “may base an award of attorney’s fees and costs on the extent to which the conduct of each party or attorney furthers or frustrates the policy of the law to promote settlement of litigation and, where possible, to reduce the cost of litigation by encouraging cooperation between the parties and attorneys.” Thus, when a party is not cooperating in settlement or runs up the legal costs of the divorce by not cooperating, the other party may seek attorney’s fees regardless of the parties’ relative financial need and ability to pay.
Because the award of attorney’s fees and costs pursuant to Family Code section 271 is a sanction, the section requires the court to “take into consideration all evidence concerning the parties’ incomes, assets, and liabilities.” The court is prohibited from imposing a sanction pursuant to Family Code section 271 that imposes an unreasonable financial burden on the party against whom the sanction is imposed. But, to obtain an award under this section, “the party requesting an award of attorney’s fees and costs is not required to demonstrate any financial need for the award.” Thus, unlike the general rule under Family Code section 2030, the moving party does not need to show financial need for the award, but only the other party’s ability to pay.
An award of attorney’s fees and costs as a sanction under Family Code section 271 may be imposed only after a noticed hearing. The party requesting the fees, therefore, must set a hearing in the divorce proceeding and give the other party notice of that hearing, so that the other party has an opportunity to address the court about the issue.
An award of attorney’s fees and costs as a sanction under Family Code section 271 is payable only from the property or income of the party against whom the sanction is imposed, except that the award may be against the sanctioned party’s share of the community property. A consequence of this requirement is that the sanctions may not be imposed on the attorney for the sanctioned party, even though the attorney’s actions may cause the sanctions.
In 1993, the legislature made Family Code section 271 broad enough to apply to all proceedings under the Family Code. (23 Cal.L.Rev.Comm. Reports 1 (1993)). But, a refusal by ERISA plan fiduciaries to qualify a domestic relations order does not support an award of Family Code section 271 sanctions against the fiduciaries, because Congress committed all decisions concerning qualification of proposed domestic relations orders exclusively to the sole discretion of the plan administrator.
The behavior that can trigger the sanctions is broad. Even obstreperous conduct has been found to be a basis for 271 sanctions. The statute does not require that the sanctioned conduct be frivolous or taken solely for the purpose of delay.
The cases state that Family Code section 271 does not require any actual injury, and, because it is not a need-based statute, the section does not require a correlation between the sanctioned conduct and specific attorney fees. On the other hand, the courts have ruled that the sanctions must in some way be related (“tethered”) to a party’s attorney fees and costs and may not be used to compensate for emotional distress or to punish the other side. For example, in one case an appellate court refused to allow as Family Code section 271 sanctions $18,000 in travel expenses plus an additional amount for vacation time used for work, because they were not attorney fees or costs within the meaning of Family Code section 271. But interest related to attorney fees was allowed.
When seeking attorney’s fees and costs, analyze the behavior of your adversary of and your adversary’s lawyer for actions offensive enough for a judge to impose sanctions because the actions frustrated the policy of the law to promote settlement of litigation and, where possible, to reduce the cost of litigation by encouraging cooperation between the parties and attorneys.