A recent question was posted to me in a family law forum. Given that many people ask the same question, I decided to post the question here, along with my answer.
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, the 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.
