Family Law: 2030/2032 Fee Award To Ex-Husband Reversed Because Based On Ex-Wife’s Assumed Ability To Obtain A Loan To Pay Award To Ex-Husband

Award Must Be Based On Actual Income And Assets.

            Although unpublished, Marriage of Aquino, Case No. B279406 (2d Dist., Div. 5 Sept. 29, 2017) (unpublished) dealt with the issue of whether a trial judge could order a needs-based fee award under Family Code sections 2030/2032 based on the perception that one ex-spouse could obtain a loan to fund the fee award. 

            The facts of the case are that ex-wife had no income stream and substantial monthly expenses based on opening up her own investment company, but the trial court believed she could obtain a loan and ordered her to pay 2030/2032 fees to ex-husband.  The 2/5 DCA reversed, finding that the award needed to be based on actual income and/or assets, with the panel observing it could locate no published California decision basing a 2030/2032 fee award on a spouse’s assumed ability to obtain a loan.