HOW CAN I HIRE AN EXPERIENCED DIVORCE ATTORNEY IF I CANNOT AFFORD ONE?
There are situations where the divorcing parties have to deal with complicated issues such as child custody, child support, distribution of community assets which generally would be handled by an experienced Attorney. However, sometimes the community does not have a lot of cash to afford to pay for competent representation better yet to pay for two of them (attorney for the husband and attorney for the wife.) In other situations, only one spouse controls the purse in the marriage that the other spouse does not have any cash to pay for competent counsel to represent themselves in a highly litigated divorce proceeding. This creates an uneven playing field between the spouses. The one that controls the purse gets the experienced lawyer while the other one ends up representing themselves in court and usually ends up being destroyed by the spouse with the experienced counsel.
What is the cash poor spouse to do? Are they limited to representing themselves with the help of a paralegal to fill out their papers. How can they properly fight for their rights when their husband or wife has control of the cash and can afford an experienced divorce lawyer? If the community has real estate with sufficient equity which may be characterized as community property, the cash poor spouse may retain competent counsel even though the spouse does not have much cash if the attorney is willing to accept what you call a Family Law Attorneys Real Property Lien (FLARPL) as collateral for unpaid legal fees.
This can be very helpful for a lot of divorcing couples that do not have much cash to hire an attorney but have equity in their houses. Pursuant to Fam.C. § 2033, either party may encumber his or her interest in community real property to pay “reasonable” attorney fees in order to retain or maintain legal counsel in a dissolution, nullity or legal separation proceeding. The lien may attach only to the encumbering party's interest in the community real property (i.e., lien voidable and unenforceable to extent it encumbers nonconsenting spouse's interest). [Fam.C. § 2033(a); see also Fam.C. § 1102(e)] However, perfection and enforceability of the lien are subject to several carefully-drafted limitations. Notice of the lien must be served personally on the other party (or his or her attorney of record) at least 15 days before recordation of the encumbrance. [Fam.C. § 2033(b)]
Does the FLARPL violate the automatic Temporary Restraining Orders that come with filing a Petition and Summons? Normally, a mutual restraining order effective upon service of summons in a dissolution, nullity or legal separation proceeding, and lasting until final judgment, dismissal or further court order, bars both parties from transferring, encumbering or otherwise disposing of any property without the other party's written consent or court order, except “in the usual course of business or for the necessities of life ... ” However, either party's use of community or quasi-community property, or his or her own separate property, “to pay reasonable attorney fees and costs in order to retain legal counsel in the proceeding“ is expressly exempted from those TRO provisions
Parties should not take the risk of litigating a complex divorce case that involves a substantial amount of community property just because they do not have the cash to retain an attorney. It may end up costing them more in terms of receiving un-equitable division of community assets. If you are in this situation, you should seek an experienced divorce attorney that is willing to handle your case on a lien basis.
Please note that this article is not legal advice and is not intended as legal advice. The article is intended to provide only general, non-specific legal information. This article is not intended to cover all the issues related to the topic discussed. The specific facts that apply to your matter may make the outcome different than would be anticipated by you. This article does not create any attorney-client relationship between you and the Law Offices of Kenneth U. Reyes, P.C. This article is not a solicitation.
Attorney Kenneth Ursua Reyes was President of the Philippine American Bar Association for 2005. He is a member of both the Family law section and Immigration law section of the Los Angeles County Bar Association. Mr. Reyes is a Certified Family Law Specialist. He is a graduate of Southwestern University Law School in Los Angeles and California State University, San Bernardino School of Business Administration. He has extensive former CPA experience prior to law practice. LAW OFFICES OF KENNETH REYES, P.C. is located at 3699 Wilshire Blvd., Suite 700, Los Angeles, CA, 90010. Tel. (213) 388-1611 or e-mail kureyeslaw@gmail.com; visit at www.kenreyeslaw.com