By Richard A. Marcus, Esq.


Sometimes overlooked by family law judges is the legislative policy that each party have attorney representation in family law proceedings. This often becomes an issue in low and middle income families and was recently addressed in a Court of Appeal Decision in a case entitled Alan S. v. Superior Court. In Alan S, the Court noted that the purpose of §2030 was not the redistribution of wealth from the greater income party to the lesser income party, but rather to provide parity, a fair hearing with two sides equally represented.


What would happen with some frequency is that the family law courts, which are often overtaxed with very heavy dockets would simply look at which spouse had more money and ordered that spouse to pay for the other spouse’s attorney fees. The father in Alan S had appealed an attorneys fee award ordered by the court of $30,000.00. He presented evidence demonstrating that his financial obligations exceeded his income and that he was unable to afford his own attorney. The appeals court found that the trial judge had improperly used a truncated approach to deciding the issue of attorneys fees and thus reversed the family law court’s decision.


There are a number of factors that a family law court is supposed to look at in deciding attorneys fees motions. In light of the recent Alan S. case, skilled family law practitioners now have a better chance of getting trial court judges to consider all of the statutory factors under the law, rather than the simple issue of which spouse makes more money. It is hard in today’s economic times for the Courts to divide the limited resources of the parties, but the key with any division should be equality. That is what the concept of community property is all about.