§ 3.04 SPECIAL CIRCUMSTANCES
While an understanding of the "need and ability to pay" standard will help an attorney navigate most attorney fee issues in family law cases, there are special situations in which statutes and equitable standards may come in to play.
[1] Parentage Actions
Parentage actions have certain rules that sometimes mirror the general rule of "need and ability to pay" and sometimes ignore the general rule. For example, RCW 26.26B.060, the general statute regarding attorney fees in parentage actions, does not require consideration of the parties' needs or ability to pay. In re Marriage of Wendy M., 92 Wn. App. 430, 441, 962 P.2d 130 (1998).
In contrast, in a parentage action in which a parent alleges a child was conceived from a sexual assault and wants to prohibit the parental relationship (RCW 26.26A.465), attorney fees can be awarded under the general domestic relations attorney fee section, RCW 26.09.140.
Finally, in adjudicative proceedings in parentage actions (RCW 26.26A.400-.515), an attorney can enforce an order for attorney fees in the attorney's own name. RCW 26.26A.510.
[2] Committed Intimate Relationships
Attorney fees cannot be awarded in a committed intimate relationship case because RCW 26.09.140 applies to marriages only. Foster v. Thilges, 61 Wn. App. 880, 887, 812 P.2d 523 (1991); W. Cmty. Bank v. Helmer, 48 Wn. App. 694, 699, 740 P.2d 359 (1987). This does not restrict application of RCW 26.09.140 to parentage actions that might accompany a dissolution of a committed intimate relationship.
The common-law rules applicable to committed intimate relationships have been adopted by analogy to the divorce statutes. Connell v. Francisco, 127 Wn.2d 339, 349, 898 P.2d 831 (1995). Although current case law does not allow RCW 26.09.140 to be applied directly to committed intimate relationships, an argument can be made that attorney fees can be awarded in committed intimate relationship cases based on application of equity principles (e.g., for intransigence, bad faith, or as CR 11 sanctions).
Comment: Committed intimate relationship case law is still evolving, and the ability to request attorney fees based on the principles of RCW 26.09.140, without directly relying on RCW 26.09.140, may become a possibility in the future.
[3] Community Property Not Awarded
In some cases the parties fail to include property in a divorce decree, either by mutual error or because one party concealed the property. Community property that is not...
