Florida divorce (or, dissolution of marriage) cases are grounded in equity; therefore, fairness and equitable principles generally apply. Many litigants wonder who will end up paying for the attorney’s fees, costs, and/or suit money that are incurred during a divorce. This blog post is designed to provide some basic and introductory guidance as to attorney’s fees and cost awards in Florida dissolution of marriage actions. Generally, in an initial divorce case, the guiding factors in determining who pays attorney’s fees and costs are one party’s need for help with the attorney’s fees and costs, and the other party’s ability to pay for the attorney’s fees and costs. The starting point for anyone addressing attorney’s fees and costs in a divorce case is § 61.16, Florida Statutes.
Section 61.16 reads, in whole part:
1) The court may from time to time, after considering the financial resources of both parties, order a party to pay a reasonable amount for attorney’s fees, suit money, and the cost to the other party of maintaining or defending any proceeding under this chapter, including enforcement and modification proceedings and appeals. In those cases in which an action is brought for enforcement and the court finds that the noncompliant party is without justification in the refusal to follow a court order, the court may not award attorney’s fees, suit money, and costs to the noncompliant party. An application for attorney’s fees, suit money, or costs, whether temporary or otherwise, shall not require corroborating expert testimony in order to support an award under this chapter. The trial court shall have continuing jurisdiction to make temporary attorney’s fees and costs awards reasonably necessary to prosecute or defend an appeal on the same basis and criteria as though the matter were pending before it at the trial level. In all cases, the court may order that the amount be paid directly to the attorney, who may enforce the order in that attorney’s name. In determining whether to make attorney’s fees and costs awards at the appellate level, the court shall primarily consider the relative financial resources of the parties, unless an appellate party’s cause is deemed to be frivolous. In Title IV-D cases, attorney’s fees, suit money, and costs, including filing fees, recording fees, mediation costs, service of process fees, and other expenses incurred by the clerk of the circuit court, shall be assessed only against the nonprevailing obligor after the court makes a determination of the nonprevailing obligor’s ability to pay such costs and fees. The Department of Revenue shall not be considered a party for purposes of this section; however, fees may be assessed against the department pursuant to s. 57.105(1).
(2) In an action brought pursuant to Rule 3.840, Florida Rules of Criminal Procedure, whether denominated direct or indirect criminal contempt, the court shall have authority to:
(a) Appoint an attorney to prosecute said contempt.
(b) Assess attorney’s fees and costs against the contemptor after the court makes a determination of the contemptor’s ability to pay such costs and fees.
(c) Order that the amount be paid directly to the attorney, who may enforce the order in his or her name.
§ 61.16, Fla. Stat.
Section 61.16 makes it clear that the primary considerations for a Court in adjudicating attorney’s fees are need and ability to pay. A party does not need to be completely unable to pay their own attorney’s fees to obtain an award or partial award, as long as the other party can a greater ability to contribute. The Court will award any amount that it deems appropriate based upon the parties’ respective financial positions. As the statute makes clear, a party can make a request for an award of attorney’s fees and costs at any point in the case, and such a request does not have to wait until the case is over. This is very important, to ensure that litigants in a divorce action are on equal footing when going through the process.
More, divorce is one of the only areas of law where an award of attorney’s fees and costs can be made by the Court without the need for expert witness evidence. This streamlines the process for obtaining a temporary fee award early in the case, and helps reduce costs. If a party is in need of attorney’s fees quickly, it is important to get the case moving forward on that track right away. Before a party obtains temporary financial relief of any sort in a divorce case, the party must carefully comply with Florida Family Law Rule of Procedure 12.285, which provides, in relevant part, that before filing a notice of hearing setting any temporary financial relief hearing a party must comply with the mandatory disclosure requirements of Rule 12.285. This includes production of the financial documents detailed in said Rule, along with serving a financial affidavit found in Florida Family Law Form 12.902. Therefore, it is important to be well-prepared in order to avoid any delays in obtaining much needed relief.
Florida’s appellate courts have developed other considerations, separate and aside from need and ability to pay. “[O]ther relevant circumstances to be considered include factors such as the scope and history of the litigation; the duration of the litigation; the merits of the respective positions; whether the litigation is brought or maintained primarily to harass (or whether a defense is raised mainly to frustrate or stall); and the existence and course of prior or pending litigation.” Rosen v. Rosen, 696 So. 2d 697, 700 (Fla. 1997). It is important to present competent evidence as to any of these factors if they are relevant in a case.
If you need assistance with a Florida family law matter, contact our office at 305.222.7921 or [email protected], immediately, to schedule a consultation!
Robert Stone Jeffrey, Esq., is an attorney admitted to the Florida Bar in 2010, the United States District Court for the Middle District of Florida, the United States District Court for the Southern District of Florida, and the Supreme Court of the United States. Robert has experience handling complex and high asset family law disputes, and has authored chapters in various publications relating to Florida family law, as well as civil and commercial litigation. Robert has been awarded an AV Rating by Martindale-Hubbell (2017 and 2018), as “Peer Rated For Highest Level of Professional Excellence.” Robert was awarded a 10/10 rating by Avvo.com, and various client reviews can be accessed through that platform. See https://www.avvo.com/attorneys/33134-fl-robert-jeffrey-3341362.html. More information about Robert can be found at www.RSJLegal.com
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