Avoiding adverse rulings on attorney fees requests in family court

The purpose of this article is to assist family law practitioners in avoiding the common mistakes in requesting attorney fees pursuant to Family Code Sections 2030, 2032, 3121, 3357 and 7605. As a former family law judge, I know that family law judges want to grant reasonable attorney fees where both the facts and the law warrant the same.

The key is to make it easy for the judge to make the award of attorney fees by submitting the proper Judicial Council forms. The judges want (if not are begging) you to use the Judicial Council forms instead of a "comparable declaration." The only declaration you should be submitting is your Keech declaration along with your billing statement when requesting attorney fees. See In re marriage of Keech, 75 Cal. App. 4th 860 (1999).

The first step is to develop and use a checklist (see below) that complies with California Rule of Court 5.427. Do not use "comparable declarations" where a Judicial Council form can be used because you're going to make the judge's life miserable. Your case is among 15-20 other cases that the court is preparing for that day. The last thing that the judge wants to do is spend the next 20 minutes reviewing a comparable declaration to determine if the declaration mirrors the Judicial Council forms. Typically, these comparable declarations have glaring omissions which result in the denial of the attorney fees request.

Always use the Judicial Council forms for the FL-319, FL-15, and FL-158; do not use a comparable declaration. If you have a dissolution case don't forget to submit the FL-157. The court is mandated to take under consideration the circumstances of the respective parties pursuant to Family Code Section 4320. The FL-158 makes specific reference to requiring the submission of the FL-157.

The failure to submit any of these forms can be fatal to your request. A seasoned family attorney will argue that CRC 5.427 states that "the party must complete, file and serve the following documents" (i.e., FL-319, FL-150, FL-157, FL-158) and that opposing counsel's failure to follow the statute leaves the court with no option other than to deny the attorney fees request.

The primary reason that attorney fees are denied (even if there is a finding of a disparity in access to funds to retain counsel and one party is able to pay for legal representation of both parties) is due to the attorney's failure to submit the Keech declaration. Don't make this mistake! This is your opportunity to tell the judge about your expertise, your billing rate, what fees have been and will be incurred, and why the requested fees and costs are just, necessary and reasonable. Be brief but yet persuasive in your Keech declaration.

Lastly, make sure you submit your billing statement of the work that you have and will perform. The billing statement should be detailed so the judge can understand the reasons why you're requesting the stated sum of fees and/or cost.

Here is the checklist:

ATTORNEY FEES AND COST CHECKLIST PURSUANT TO FC Sections 2030, 2032, 7605

Compliance with CRC 5.427(a) is required. The following must be served and timely filed with your Request for Order (FL-300) pursuant to CCP Section 1005(b):

____1. "Request for Attorney's Fees and Costs Attachment" (FL-319) or a comparable declaration that addresses the factors covered in FL-319.

____2. A current "Income and Expense Declaration" (FL-150).

____3. A personal declaration in support of the request for attorney's fees and costs, either using the "Supporting Declaration for Attorney's Fees and Costs Attachment" (FL-158) or a comparable declaration that addresses the factors covered in FL-158.

____4. In dissolution cases submit FL-157.

____5. A personal declaration that provides the court with sufficient information about the attorney's hourly billing rate, the nature of the litigation, the attorney's experience in the particular type of work demanded, the fees and costs incurred or anticipated, and why the requested fees and costs are just, necessary, and reasonable.

____6. A detailed billing statement that lists the services that have and will be performed.