The general “American” rule is that each party will pay their own attorney fees. In California, there are two exceptions to this rule in Family law. The first and most important exception is when an order for attorney fees is necessary to “level the playing field.” When one party’s assets and income are so much larger than the other party’s that they have a significant advantage in the litigation, the court has the authority to order the “advantaged” party to pay some or all of the other party’s attorney fees and costs (to the degree necessary to “level the playing field”).
In our experience, the order for attorney fees will not normally pay all of the other party’s attorney fees unless the advantaged party’s assets and income are far above average. Therefore, even if your spouse has far greater income than you do, you should always make decisions about when to settle and when to proceed to a hearing or trial based on the assumption that you will be liable for a substantial portion of the attorney fees you incur.
The second exception to the rule that each party pays their own attorney fees is when a party is behaving unreasonably and thwarting the court and the public’s interest in encouraging settlement in family law cases. It is our experience that a request for attorney fees under this exception is rarely granted (with a few glaring exceptions). An attorney and his or her client is given wide latitude to see the case in his or her own way and to vigorously advocate on behalf of their interests. But to say it rarely happens is not to say that it never happens. Your efforts to fight for your best possible outcome should be tempered by the knowledge that if you overstep your bounds and are seen as advocating for an unreasonable position (or that you are conducing yourself in a way that unnecessarily drives up legal expenses), you may find yourself being ordered to pay the other party’s attorney fees.