Yes, if the petitioner wins and asks for fees. In a California domestic violence restraining order case, the court must then order attorney’s fees and costs for the petitioner, but only after first finding that you have, or are reasonably likely to have, the ability to pay. If you win instead, the court may order the petitioner to pay your fees and costs, but only if you prove the petition was frivolous or solely intended to abuse, intimidate, or cause unnecessary delay.

If the petitioner wins

After notice and a hearing, if the petitioner prevails and requests fees, the court must issue an order for the payment of the petitioner’s attorney’s fees and costs (Family Code section 6344(a)). Apart from the ability-to-pay finding described below, this award is mandatory, not discretionary, once the petitioner has won and asked. The request form has an item for it, item 26 (“Lawyer’s Fees and Costs”), so check whether it is marked on the form DV-100 you were served.

If you win instead

If you are the prevailing respondent, the court may order the petitioner to pay your attorney’s fees and costs only if you establish, by a preponderance of the evidence, that the petition or request was frivolous or solely intended to abuse, intimidate, or cause unnecessary delay (Family Code section 6344(b)). Winning is not enough on its own, and even with that showing, the award is up to the judge. You can ask for your fees on the response form (form DV-120, item 23).

The ability-to-pay finding applies to either award

Before awarding fees and costs under section 6344 to either side, the court must first determine, under Family Code section 270, that the party who would be ordered to pay has, or is reasonably likely to have, the ability to pay (Family Code section 6344(c)). Section 270 applies the same rule to any order to pay attorney’s fees or costs under the Family Code (Family Code section 270). So if the court cannot find that you have, or are reasonably likely to have, the ability to pay, it cannot order you to pay the petitioner’s fees, even after a loss.

When the petitioner has asked for fees, DV-120 tells you to fill out form FL-150, Income and Expense Declaration, and file it ahead of the hearing. That form sets out your income and expenses.

The current version of section 6344 took effect January 1, 2023, so explanations written before then may describe an earlier version of this rule.

Practical takeaways

  • Losing does not automatically mean paying the other side’s lawyer. The petitioner has to ask, and the court has to find that you have, or are reasonably likely to have, the ability to pay.
  • Winning does not automatically mean the petitioner pays your fees. You have to prove the petition or request was frivolous or solely intended to abuse, intimidate, or cause unnecessary delay, and the judge still decides.
  • Keep accurate records of your income and expenses for the ability-to-pay question.

Next steps

Fee-shifting can turn a restraining order case into a real financial risk on top of everything else at stake. To have the underlying petition and any fee request evaluated, contact the Law Offices of David S. Chesley at (800) 755-5174.