As the Kim and Kris divorce saga continues to outlast the actual “marriage” that they continue to fight about. Kim on one side wants to have her divorce settled and terminated as a divorce, whereas Kris is seeking to have it annulled claiming that Kim married him for fraudulent purposes relating to her various tv shows and her marketing goals.
As such the parties continue to hit roadblocks as Kris seems unwilling to agree to Kim’s requested divorce and Kim is unwilling to concede to committing fraud in inducing Kris to marry her.
As another new twist Kim is now allegedly demanding that Kris pay her legal fees as she claims he has forced the case to be drawn out unreasonably long. Absent an agreement by the parties the court can award attorney’s fees in a Family Law case for a few reasons as explained below.
The general rule in the family code that provides the court the ability to order legal fees, attorney fees, under the premise that each party has access to legal representation is codified in Family Code section 2030. Family Code section 2030 provides that the court can order one party in a family law matter to pay the other party’s attorney fees. When the issue of attorney fees is brought before the court the court must go through a two-prong analysis prior to granting or denying a request for attorney’s fees. The first step is to analyze whether there is a disparity of income between the parties that the party seeking attorney’s fees has a need for an attorney fee order be awarded. The second step is to analyze whether the party who could be ordered to pay the attorney’s fees has the actual ability to pay/contribute to the requesting party’s attorney’s fees. In a simplified form the easiest way to understand and remember Family Code section 2030 is “need” and “ability to pay”.
Additionally for the court to order attorney’s fees under section 2030 it must also go through an analysis as provided in Family Code section 4320 which provides a long list of factors to provide the court with further understanding of the party’s financial situations and relationship. An analysis of this will be provided in another blog to provide detailed information and assistance. The content of Family Code section 4320 can be found here.
Reasonably under section 2030 it would be difficult for Kim to assert that she has a “need” for Kris to contribute to her attorney’s fees due to her considerable assets, brands, and income as is believed by the public. However, if she has considerably less income as is perceived by the public she could have a shot at a request for her attorney’s fees to be ordered by the court.
Additionally under Family Code section 271, there is another avenue that she could take advantage of in requesting attorney’s fees. Due to the stories coming out in the media that Kim is claiming that she wants Kris to pay her attorney’s fees because he has made the case draw out as long as it has, I would presume attorney’s fees pursuant to section 271 would likely be her perceived legal grounds.
Under section 271 the court can award attorney’s fees and costs as a sanction if it finds that the conduct of a party or attorney “furthers or frustrates the policy of law to promote settlement of litigation…” In coming to a finding that the sanction should be ordered by the court the court shall take into consideration all evidence concerning the parties’, income, assets, and liabilities. In considering all financial aspects the court cannot impose a sanction that would impose an unreasonable financial burden on the party that would be ordered to pay the attorney’s fees. As a distinction from section 2030, under section 271 the requesting party is not required to demonstrate any financial need for the award.
In light of the statutory authority which Kim can avail herself of to seek attorney’s fees, section 2030 and section 271, her best argument would be pursuant to section 271. With that she will be required to prove that Kris has been frustrating settlement and drawing the litigation out unnecessarily long. However, with that in mind he cannot be “punished” merely for asserting a claim that she is contrary to, specifically his request for an annulment in lieu of dissolution (divorce).
With this there is always the potential for Kim and Kris to come to a settlement agreement which provides attorney’s fees that would, and could, not be ordered should the case be litigated in court.
Only time will tell as to the next legal twist and turn Kim and Kris will take us through while unraveling their 72-day marriage.
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