THURMAN'S "DOMESTIC VIOLENCE ATTORNEY FEES" TIPS

CAL Family Code Section 6344:

How To Recover Or Avoid Attorney Fees In Domestic Violence Cases!

Family Code section 6344 authorizes family courts to order reimbursement for attorney fees incurred in prosecuting or defending a DV case.

Section 6344 does not contemplate payment in advance in order to be able to hire a lawyer and file the action or when defending oneself from allegations of domestic abuse. Keeping in mind that most family law and divorce related attorney fee statutes (particularly where the parties are married or registered domestic partners) speak in terms of the parties' respective needs and abilities to pay their own or the other party's attorney fees without reference to who wins, section 6344 imposes a slightly different two-prong burden: (1) To be entitled to an attorney fee award, a party - and it can be either - must "prevail." Although this section doesn't expressly state it, for the petitioner this means that some or all of the orders requested are issued, and for the respondent that none of the requested orders are granted.

Perhaps oddly, the statute makes no direct reference to how the court should evaluate whether to award attorney fees for a Respondent who successfully defends against the DV accusations. It only addresses what to look at if the Petitioner prevails. After first deciding that the requesting party "cannot afford to pay" for their attorney (which of course has already happened, but maybe through a loan from family or friends), (2) the court then considers the parties' respective abilities to pay including all relevant factors. Undoubtedly, most family court judges will apply the same standards to both parties. However, I think that this difference reflects a legislative public policy decision that courts should not penalize unsuccessful DV accusers absent egregious facts by forcing them to contribute to the alleged perpetrator's costs.

If you are a losing Petitioner, point out the apparent differences in how the statute treats the two sides and argue that awarding attorney fees against a requesting party like you would have a "chilling effect" on their willingness to seek government intervention and protection, possibly with catastrophic consequences the next time. The court will not award attorney fees against you in close cases where it felt that you just barely failed to meet you burden of proof. By the way, because of the way this statute is worded you may have a better chance of recovering your attorney fees if you had to borrow the money to hire your attorney, instead of having sufficient money on hand to accomplish it.

If you are the winning Respondent, and particularly if the other party appears to have misused the DV procedures to obtain a custody advantage, exclusive use of the home, or as a set up to anticipate and avoid paying spousal support or to fluff out their alimony entitlement claims, point all that out. Argue that the other party paid their own attorney from their own funds, and demonstrably can afford it. If, in addition, the allegations arguably didn't meet the DV and "abuse" definitions set forth in Family Code section 6203 and section 6320,or if the Petitioner presented no independent corroborating evidence, urge that courts must impose consequences for those who manipulate the justice system and remind the court how serious the consequences could have been had he or she not spent what was required to clear their name! If you had to borrow the money from friends or family to hire your attorney, make that known.

Finally, remind the court that the Petitioner's burden of proof was merely by a "preponderance of the evidence," and that their failure to meet that burden demonstrates how flimsy the claims were!

CALIFORNIA FAMILY CODE

Family Code section 6344

(a) After notice and a hearing, a court, upon request, shall issue an order for the payment of attorney's fees and costs for a prevailing petitioner.

(b) After notice and a hearing, the court, upon request, may issue an order for the payment of attorney's fees and costs for a prevailing respondent only if the respondent establishes by a preponderance of the evidence that the petition or request is frivolous or solely intended to abuse, intimidate, or cause unnecessary delay.

(c) Before a court awards attorney's fees and costs pursuant to this section, the court shall first determine pursuant to Section 270 that the party ordered to pay has, or is reasonably likely to have, the ability to pay.