Family Law Attorney Fee Liens Held Subject to Court Review

A Family Law Real Property Liens, aka "FLARPL" is an encumbrance placed by an attorney on a family law client's community real property to secure that attorney's fees incurred in a family law matter. The use of the FLARPL affords a family law litigant the opportunity to hire and continue to employ an attorney in family law litigation. It is often offered as a last resort in a divorce or custody litigation case when that litigant cannot afford to pay the attorney for ongoing legal services. The FLARPL only creates a lien against the community property interest of the encumbering spouse in a piece of real property.

A 2013 California appellate case Marriage of Turkanis & Price, cited at 213 CA4th 332, held that Family Code Section 2034((c) unambiguously gives a court jurisdiction to resolve any dispute arising from the existence of a FLARPL whenever the dispute arises, including expunging the lien entirely in an appropriate case. The law does not impose any timing requirement or otherwise limit the court's ability to revisit the propriety of a FLARPL. Both the encumbering spouse and the non-encumbering spouse may seek a court determination on the enforceability of a FLARPL.

Concerned about taking the risk that a court will not reimburse all of their fees, several family law attorney practitioners that this author has spoken with following the decision in Marriage of Turkanis & Price have expressed concerns about taking future FLARPL's and have said that they would likely decline representation or even terminate ongoing services of a client unable to pay legal fees throughout the course of the litigation. Unfortunately, this will likely impact most severely the spouse most vulnerable lacking control of family financial resources.

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