It is no secret that divorces can be expensive. Depending on the issues present in the divorce on which the parties do not agree, 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. If a party does choose to file for divorce by himself- or herself, he or she may waive important rights or fail to secure a favorable outcome.
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 attorney’s fees against the other party.
Florida’s Attorney Fee Statute
Florida statutes allow courts to order one party to pay the other party’s reasonable attorney’s fees and certain other expenses after considering the financial resources of each party. The court may do this in dissolution proceedings, separate maintenance proceedings, custody proceedings, child support proceedings, enforcement and modification proceedings, and proceedings to vacate final judgments of dissolution.
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A party may not be awarded attorney’s fees in any domestic violence proceedings or enforcement actions in which the individual seeking an award of attorney’s fees is found to be a wrongdoer (i.e., one who is denying the other party parenting time or who is not paying child support).
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. For instance, it would be unfair and would create a risk that one party could take advantage of another if one spouse had the means to hire a prestigious family law firm while the other spouse needed to rely on the counsel of a legal aid organization.
Prerequisites to Requesting Attorney’s Fees
In order for a court to even consider awarding one party attorney’s fees, that party must request them at the outset of the proceeding. That is, if the person is the one bringing the action, the initial document filed with the court (usually called a “petition”) must indicate that that particular party is requesting the court to award him or her attorney’s fees. If the party is defending a proceeding, then the first document that that individual will likely file is an “answer” to the petition. If the party defending the action wishes the court to award him or her attorney’s fees, then he or she must ask for them in the answer.
For instance, suppose Maria files for divorce against her spouse Jorge. Maria does not have many assets in her name and does not believe she can afford to pay the attorney’s fees she will incur. When Maria files her petition for divorce with the court (which begins dissolution proceedings), Maria will need to include in her petition a request that the court award her attorney’s fees. Likewise, if Jorge believes he should be awarded his attorney’s fees, he would include this request in his answer to Maria’s petition.
Usually, if a party does not request attorney’s fees at the outset of the proceeding, then that party cannot later ask the court to award him or her attorney’s fees.
Considerations by the Court
When one or both parties have requested that they be awarded reasonable attorney’s fees, 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, actual need for the fees. In other words, if the party requesting attorney’s fees cannot hire competent counsel without dipping into the marital estate or marital assets, alimony, or income that he or she needs for basic living expenses, the court is more likely to find the award to be appropriate.
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. At the hearing, the court will receive evidence and testimony regarding the attorney’s rate, the work performed, and the total fees being requested. If the court finds that the attorney’s fees are reasonable, the court will enter orders awarding the attorney’s fees as requested. If the court finds the attorney’s fees are not reasonable, the court may then make a finding as to what it believes “reasonable” fees would have been and award that amount instead. Only in special circumstances will a court award only a percentage or fraction of attorney’s fees.
There are a couple of obvious situations in which a court may find the attorney’s fees requested to be unreasonable. These situations include:
- An attorney is requesting a high fee not in line with the legal community and/or the attorney’s experience. If the court believes the fee being charged by the lawyer is out of line with either the fees charged for similar work by other attorneys in the area or is not appropriate given the lawyer’s skill level, the fee amount may be found to be unreasonable. For instance, it would be completely unreasonable for a newly admitted family lawyer to charge a fee of $1,000 per hour for a simple divorce. A judge is not likely to award such attorney’s fees. In a similar vein, a party requesting attorney’s fees for an attorney who charges a reasonable hourly fee but spends an unreasonable amount of hours on a proceeding may find that the request is denied by the court.
- An attorney filed frivolous motions and pleadings or a party engaged in stalling tactics. An attorney has a general obligation to only file those motions and other documents with the court that have some merit to them (not necessarily the same as motions and documents that have a chance of success). If an attorney files motions or documents for which there is no sound legal or policy argument, or for the purpose of delaying the resolution of the ultimate issues in the case, a court may deny the attorney’s fee request.
Temporary Fees v. Final Fees
Just as a court can award attorney’s fees 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 court considers the financial situation – including income and assets – of each party. Both a need and an ability to pay must be found.
For instance, suppose Maria requests temporary attorney’s fees from Jorge. If the court finds Maria has the income and/or assets to pay her legal fees, a court is not likely to award her temporary attorney’s fees, even if Jorge has the ability to pay such fees. Likewise, if a court finds Maria’s financial situation is such that she needs her legal fees paid temporarily, but also finds that Jorge does not have the income and/or assets to pay both his legal fees and Maria’s legal fees. The court in this situation will not award Maria temporary legal fees based on Jorge’s lack of ability to pay.
It is true that some divorces can be expensive. But this should not discourage or dissuade someone from filing for divorce. Courts are empowered by Florida statutes to award one party reasonable attorney’s fees, both on a temporary and a permanent basis. The purpose of this is to ensure that both parties have access to legal counsel that is of the same general caliber. It would be obviously unfair if one party had the means to afford a high-profile divorce lawyer to have the other party “make do” with less-qualified counsel simply because he or she could not afford better counsel.
For final awards of attorney’s fees, in determining whether such an award is appropriate, courts will primarily consider the financial situations of the parties – including the income and assets available to each party. A court can also consider how long the proceeding has dragged on and whether one party is either harassing the other or acting in a way designed to delay the ultimate resolution of the issues.
For temporary awards of attorney’s fees, which award one party his or her attorney’s fees during the pendency of a proceeding, the main consideration is whether one party has a need for attorney’s fees and whether the other party has the ability to pay those attorney’s fees. Again, the court will consider the income and assets of each party in making this determination. There must be both a need for the temporary fees as well as an ability to pay the fees.
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. If a party does not request attorney’s fees at the outset of the proceeding, he or she may not be able to recover any fees later.