Just when it seemed that Johnny Depp and Amber Heard were going to wrap up their short-lived, marriage, they are back for another round of litigation. It all started when Heard sought a domestic violence restraining order. On the eve of trial, the two reached an agreement where Heard would receive $7 million as a settlement. In an interesting twist, they agreed that Depp would pay the money to charity instead of Heard and get to claim the deduction.

According to People.com, in mid-December, Heard filed a Request for Order seeking to enforce certain provisions of their settlement agreement. Specifically, Heard claims Depp did not make the scheduled payments towards the $7 million owed, did not ship her personal property, did not transfer ownership of the Range Rover, and did not pay certain debts, including stylist fees. She is also requesting that Depp pay $34,435 in attorneys’ fees.

Depp responded by claiming that Heard violated the confidentiality agreement multiple times, but most famously by doing a video for a nonprofit describing her experience with domestic violence (though she did not name Depp directly). Depp also asked for attorneys’ fees, but considerably more (probably because celebrity divorce attorney Laura Wasser isn’t cheap). Of the $1 million in attorneys’ fees he incurred so far, Depp wants Heard to pay $100,000 because her motion is “entirely unnecessary.”

Both parties continue to make the colorful insults that have made this story so entertaining. Depp’s papers stated: “Amber wants to maintain the media’s attention and thereby preserve her own fleeting relevance.” Heard’s counsel countered, “After his string of recent setbacks at the box office, I’m glad that Johnny Depp seems to have rediscovered his comic touch with this laughable motion.” Zing!

There are a number of grounds for requesting attorneys’ fees in a family law action. The most common grounds are: 1.) One party needs funds and feels the other party has the ability to pay within a divorce action (Family Code §2030), and 2.) Sanctions stemming from one party frustrating the policy of settlement or increasing litigation costs (Family Code §271).

Depp appears to be seeking sanctions because he feels Heard’s motion lacks merit and Heard is likely seeking fees for the same reason. An order of fees under Family Code §271 requires a showing that “the conduct of each party or attorney furthers or frustrates the policy of the law to promote settlement of litigation and, where possible, to reduce the cost of litigation by encouraging cooperation between the parties and attorneys.” Fam. Code §271(a). In deciding whether or not to order fees under §271, the court must not make such an award if it “imposes an unreasonable financial burden on the party against whom the sanction is imposed,” yet financial need of the requesting party does not have to be considered.

The easy decision for the Heard/Depp judge is determining that neither will face an “unreasonable financial burden” if the requested fees are granted. The hard decision is who actually violated this agreement and whether fees should be ordered as a result. Time will tell who the Cry-Baby will be.

Sarah Van Voorhis and Ariel Sosna, both Certified Family Law Specialists, are founding partners of Van Voorhis & Sosna. Follow them on Twitter at
@VanVoorhisSosna.