Family Code 271 is one of the most powerful code sections in California family law

Family Code 271 allows for sanctions in the form of attorney’s fees and costs when a family law litigant, or his or her attorney, violates its policy. For that reason, such issues usually end up in front of the family law judge.

What does Family Code 271 state? How does section 271 do what it states? How is it applied?

We wrote this informative guide to answer these questions. Nothing in this guide is legal advice about your specific situation.

Family Code 271 has five parts.

As of the date we write this guide, Family Code 271 has five parts to it.

Part One: Notwithstanding any other provision of this code, the court may base an award of attorney’s fees and costs on the extent to which the conduct of each party or attorney furthers or frustrates the policy of the law to promote settlement of litigation and, where possible, to reduce the cost of litigation by encouraging cooperation between the parties and attorneys.

Part Two: An award of attorney’s fees and costs pursuant to this section is in the nature of a sanction. In making an award pursuant to this section, the court shall take into consideration all evidence concerning the parties’ incomes, assets, and liabilities.

Part Three: The court shall not impose a sanction pursuant to this section that imposes an unreasonable financial burden on the party against whom the sanction is imposed. In order to obtain an award under this section, the party requesting an award of attorney’s fees and costs is not required to demonstrate any financial need for the award.

Part Four: An award of attorney’s fees and costs as a sanction pursuant to this section shall be imposed only after notice to the party against whom the sanction is proposed to be imposed and opportunity for that party to be heard.

Part Five: An award of attorney’s fees and costs as a sanction pursuant to this section is payable only from the property or income of the party against whom the sanction is imposed, except that the award may be against the sanctioned party’s share of the community property.

The policy behind Family Code 271

The policy behind Family Code 271 is simple.

Family Code 271 allows attorney’s fees and costs against a party in a divorce, legal separation, annulment or parentage case when that party’s conduct “frustrates the policy of the law to promote settlement of litigation and, where possible, to reduce the cost of litigation by encouraging cooperation between the parties and attorneys.”

It is designed to punish bad behavior. In that respect, Family Code 271 also exists to promote settlement and reasonable compromise.

Notice duration pursuant to Family Code 271

Family Code 271’s notice section states:

An award of attorney’s fees and costs as a sanction pursuant to this section shall be imposed only after notice to the party against whom the sanction is proposed to be imposed and opportunity for that party to be heard.

The code does not specifically give a minimum mandatory notice requirement.

So what is proper notice? It varies from case to case and is a case specific question although some California appellate cases have provided general guidelines on what is proper notice.

The more notice, the better.

Notice by request for order

Notice is sometimes by a formal request for order, filed with the court and served on the other party.

This request for order sets a hearing date where both parties must appear, put on evidence and argue Family Code 271’s merits.

Often, an attorney will group this section 271 request for order with other requests such as a Family Code 2030 and 2032 attorney fee request or even with a support request, if that is also at issue.

Notice without a request for order

Other times, a Family Code 271 notice is a detailed notice filed with the court and served on the other party and gives the other party specific notice the noticing party intends to seek sanctions at a future hearing date already set, such as, for example, a trial.

What is the sanction to which Family Code 271 refers?

Family Code 271 allows sanctions in the form of attorney’s fees and costs.

So, if a party to a family law case incurred $10,000 in attorney’s fees and $5,000 in cost because the other party violated Family Code 271’s policy, the party who seeks fees and costs may ask the court for an order against the other.

From what source can Family Code 271 sanctions be paid?

The code specifically states:

An award of attorney’s fees and costs as a sanction pursuant to this section is payable only from the property or income of the party against whom the sanction is imposed, except that the award may be against the sanctioned party’s share of the community property.

Pretty self explanatory, right?