There are two basic legal theories to seek attorneys fees: disparity of income and sanctions. Both theories provide the Court with a lot of discretion in whether or not to order fees and how much.
Under the disparity of income theory the fees are not based on who is “right” and who is “wrong,” but its based trying to equalize the litigation “playing field” by ensuring that both parties have financial access to representation.
California Family Code Section 2030 et seq. Provides that one parent may obtain attorney fees from the other if there is 1) disparity in access to funds to retain counsel and 2) the other party has the ability to pay for legal representation for both parties.
The Court will review the California Family Code Section 4320 factors prior to making an order for attorneys fees and costs. If the request is granted the Court will then determine the amount of fees and the rate of payment. This will vary from case to case and judge to judge.
If attorney fees are awarded to one party, then the contributing spouse will be ordered to make a payment, but this does not necessarily mean all of the fees will be paid by them.
Under California Family Code Section 271 the Court can order one party to pay attorney’s fees as a sanction or penalty for bad conduct that results in unnecessary litigation.