Can My Spouse Be Ordered To Pay My Attorney Fees in Florida?
It is no secret that divorces can be expensive. A divorce can (but may not always) end up costing thousands of dollars in attorney’s fees. The perceived high cost of a divorce attorney can lead some to either not file for divorce at all or attempt to represent themselves. By not filing for divorce, a party may remain in a harmful or abusive relationship simply because he or she feels a divorce attorney is out of his or her budget.
Recognizing that some individuals may not have the financial means to afford a family law attorney, Florida statutes enable courts to assess one party’s reasonable and necessary attorney’s fees and costs against the other party.
Florida’s Attorney Fee Statute
Florida statutes allow courts to order one party to pay the other parties reasonable and necessary attorney’s fees and costs after considering the financial resources of each party. The court may do this in the following types of actions: dissolution of marriage, separate maintenance, time-sharing, child support, paternity, enforcement and modification and proceedings to vacate final judgments of dissolution of marriage. The purpose of allowing the court to award reasonable attorney’s fees and costs is to ensure both parties have access to competent legal counsel and to ensure one spouse does not have an unfair advantage over the other.
The purpose of allowing the court to award reasonable attorney’s fees is to ensure both parties have access to competent legal counsel and to ensure one spouse does not have an unfair advantage over the other.
Considerations by the Court
When one or both parties have requested that they be awarded reasonable and necessary attorney’s fees and costs, the court must determine whether the request should be granted. In doing so, the court will look at a number of factors to gauge whether such an award is warranted. The list of factors a court can consider is broad and a court can assign whatever value or importance to any individual factor.
Some of the factors that courts typically consider when determining if such an award is proper include:
- Financial resources of the parties. While not the only consideration, this is probably the most significant consideration when determining if attorney’s fees should be awarded. The court examines the financial resources of both the party requesting fees and the resources of the party against whom the fees are sought. This is more than a simple look at the income of the parties. One party may be found to not have much present income but have significant assets (such as real estate, valuable collectors’ items, etc.). In such a case, a court may find that an award of attorney’s fees is not appropriate.
- Scope, history and duration of the proceedings. It may be the case that one party began a proceeding that was limited in nature (such as establishing a child support amount), but now the proceeding is encompassing a myriad of issues and has dragged on for several months. In such a case, a party who may have initially been able to afford competent legal counsel may find the bill much more difficult to pay. In such a case, the court may find an award of attorney’s fees appropriate.
- Merits of the parties’ positions. If it appears to the court that one party is acting in such a way as to harass the other party or to stall the proceedings, the court may take this into consideration. In both cases, the party being harassed or the party that is not stalling will necessarily incur legal fees in defending him or herself. The court may find that fairness and justice support an award of reasonable attorney’s fees, both as a means of reimbursing a party for needless litigation and as a means of punishing or deterring a party from bringing meritless proceedings.
- An actual need for the award. A minority of Florida courts may award attorney’s fees if they find there is a relative need. That is, where one party is in an inferior financial position compared to the other spouse. The majority of courts, however, look for the party requesting the fees to have a demonstrable and actual need for the fees.
Attorney’s Fees Must Be Reasonable
Even if a court finds an award of attorney’s fees to be appropriate, the court must then determine what fees are reasonable. The court will not award attorney’s fees that it finds unreasonable or excessive. This is a subjective determination the court must make after holding a hearing on the matter.
Temporary Fees v. Final Fees
Just as a court can award attorney’s fees and costs at the conclusion of a proceeding, a court may enter temporary orders concerning attorney’s fees. This would allow one party to have their legal expenses paid for by the other party during the pendency of the hearing. In determining whether such temporary awards are appropriate, the court considers both the need of the party requesting the temporary fees as well as the other party’s ability to pay. Like the process for final awards, temporary awards are made after a hearing concerning the financial situation of both parties– including income and assets – of each party. Both a need and an ability pay must be found.
A person considering a divorce or another family law proceeding (child support, parenting time, etc.) should speak with his or her attorney early about requesting that the other party pay attorney’s fees on a temporary or permanent basis.