California Family Code Section 6344 shifts attorney fees in domestic violence restraining order cases, but it treats the two sides very differently. If the petitioner wins and asks for fees, the court must order them, provided the respondent has the ability to pay. If the respondent wins, fees are only available when the respondent can prove the petition was frivolous or filed solely to abuse, intimidate, or delay. The statute applies after a noticed hearing under the Domestic Violence Prevention Act, not at the ex parte or temporary restraining order stage.
Mandatory Fees When the Petitioner Prevails
Section 6344(a) uses the word “shall.” The court “shall issue an order for the payment of attorney’s fees and costs for a prevailing petitioner” upon request.1California Legislative Information. California Code FAM 6344 That language is not discretionary. A judge who finds in the petitioner’s favor on the restraining order and receives a properly supported fee request is directed to grant it.
The one qualifier sits in subdivision (c): the court must first confirm the respondent’s ability to pay. Assuming that threshold is met, a prevailing petitioner’s fee request carries the force of a statutory command.
The Higher Bar for a Prevailing Respondent
The standard flips when the respondent wins. Under Section 6344(b), a court “may” award fees to a prevailing respondent, but only if the respondent proves by a preponderance of the evidence that the petition was frivolous or “solely intended to abuse, intimidate, or cause unnecessary delay.”1California Legislative Information. California Code FAM 6344
Losing a case is not the same as filing a frivolous one. A petitioner whose evidence was credible but ultimately unpersuasive has not filed a frivolous petition. And the word “solely” does heavy work: the respondent must show the entire purpose of the petition was harassment or delay, not that some allegations were weak or exaggerated. The legislature built this asymmetry into the statute so that fear of a fee award would not deter people in dangerous situations from filing.
The Ability-to-Pay Requirement
Whichever side is asking, Section 6344(c) requires the court to find that the party being ordered to pay “has, or is reasonably likely to have, the ability to pay” before issuing any fee award.1California Legislative Information. California Code FAM 6344 This tracks the same threshold Family Code Section 270 sets for attorney fee orders across the Family Code.2Justia Law. California Family Code 270-274
Courts typically look at:
- Current income from wages, self-employment, and investments
- Assets such as bank accounts, real property, and retirement holdings
- Earning capacity, meaning what the party is reasonably likely to earn even if currently underemployed
- Monthly obligations, including rent, child support, and debt payments
The phrase “reasonably likely to have” matters. A respondent who earns well but claims to be cash-poor at the moment can still be ordered to pay based on future earning capacity, with the court setting a payment schedule that fits the paying party’s financial reality.
When Section 6344 Applies
The statute operates only “after notice and a hearing.” That means the fee question is decided at or after the noticed restraining order hearing, not when a court issues a temporary order on an ex parte basis.1California Legislative Information. California Code FAM 6344 If you are heading to a temporary restraining order hearing, do not expect fees to be resolved there. Courts often hear the fee request alongside the restraining order itself, though the judge may continue financial issues to a later date when documentation is complex.
How to Request Fees Under Section 6344
A fee request requires specific Judicial Council forms. The main one is Form FL-319, the Request for Attorney’s Fees and Costs Attachment, which itemizes what you are asking the court to order. FL-319 must be filed with a current Income and Expense Declaration on Form FL-150. FL-150 counts as current if it was completed within the prior three months and your circumstances have not changed.3Judicial Council of California. Request for Attorneys Fees and Costs Attachment FL-319
Strong requests come with supporting documentation:
- Attorney billing records showing hours worked, the hourly rate, and a description of each task
- Cost receipts for process server fees (typically $20 to $100), copying, and any expert witness expenses
- Income verification such as recent pay stubs, tax returns, or benefit statements that corroborate the figures on Form FL-150
Vague fee requests are easy for judges to reduce or deny. If your attorney charged $350 an hour for 15 hours of work, the billing records should show what happened during each of those hours. The forms must be filed and served on the opposing party in advance, following standard California service rules, so the other side has time to respond. Once the judge rules, the fee order becomes an enforceable money judgment.
Can a Section 6344 Fee Award Be Discharged in Bankruptcy?
Federal bankruptcy law limits how far a paying party can go to avoid a fee order. Under 11 U.S.C. § 523(a)(5), debts classified as a “domestic support obligation” cannot be discharged in bankruptcy under any chapter.4Office of the Law Revision Counsel. 11 USC 523 – Exceptions to Discharge
The definition in 11 U.S.C. § 101(14A) covers debts “in the nature of alimony, maintenance, or support” owed to a spouse, former spouse, or child and established by court order, regardless of how the debt is labeled.5Office of the Law Revision Counsel. 11 USC 101 – Definitions Whether a particular Section 6344 fee award qualifies depends on the facts and the relationship between the parties. Fee awards tied to spousal or child protective proceedings are strong candidates for non-dischargeability, but the classification is not automatic, and the prevailing party may have to litigate that question in bankruptcy court if the paying party files.