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Attorney Fees

Who pays for divorce attorney fees in Florida?

The court possesses the authority to consider all “relevant” factors when determining whether to order an award of attorney’s fees. The most important factor to consider is the relative financial position of each party. If one party is clearly in a vastly superior financial position, this is usually grounds for an award of attorney fees on its own. However, income alone is not grounds for an award of attorney’s fees. The petitioning spouse must prove need for an award of attorney’s fees. The court must examine how alimony, child support, and/or equitable distribution has affected the financial position of each party. If the petitioning spouse has a much lower income than the other but has been awarded ample financial resources from the divorce proceedings, the court may deny his/her request for attorney fees. The court must consider non-marital assets when determining an award of attorney fees.

There are several factors outside the realm of financial circumstances that the court should consider as well. The court must determine that the reported attorney fees are “reasonable and necessary” before granting an award. The court will also examine the duration of the litigation and how each party has handled his/herself throughout its course. If it seems as though one party is instigating unnecessary litigation meant to harass the other party, the court may take this into consideration while determining an award of attorney fees.

What are the basic requirements to obtain attorney fees?

The basic requirements that must be met to seek or obtain attorney’s fees are:

  1. The parties must be in a marital relationship;
  2. The court must have jurisdiction over the party which is ordered to pay the attorney’s fee award
  3. The party requesting attorney’s fees must do so prior to the final judgment; and
  4. The demonstrated financial need of one party and the demonstrated financial ability of the other to pay attorney’s fees.

 

How do I request recovery of my attorney fees?

A request for attorney’s fees should be made in the original petition or a responsive pleading. A financial affidavit must be filed by the party requesting the fees. The request for fees should base entitlement on allegations in the pleadings. Attorney’s fees may also be awarded through consent. If a party is made aware that the opposing party has requested attorney’s fees and does not reject the claim, or otherwise acknowledges the claim as legitimate, that party forfeits his/her ability to deny attorney’s fees. Often, in Palm Beach County divorce cases, the parties will negotiate and agree upon both temporary and final attorney’s fee awards when one spouse is in a superior financial position as compared to the other spouse. Prior to any enforcement proceeding, the party must again request fees through a pleading or he/she may be denied the award. The trial court may maintain a party’s claim for fees after the final judgment by reserving jurisdiction.

How does the court determine whether attorney fees should be awarded?

The court possesses the authority to consider all “relevant” factors when determining whether to order an award of attorney’s fees. The most important factor to consider is the relative financial position of each party. If one party is clearly in a vastly superior financial position, this is usually grounds for an award of attorney fees on its own. However, income alone is not grounds for an award of attorney’s fees. The petitioning spouse must prove need for an award of attorney’s fees.

The court must examine how alimony, child support, and/or equitable distribution has affected the financial position of each party. If the petitioning spouse has a much lower income than the other but has been awarded ample financial resources from the divorce proceedings, the court may deny his/her request for attorney fees. The court must consider non-marital assets when determining an award of attorney fees.

There are several factors outside the realm of financial circumstances that the court should consider as well. The court must determine that the reported attorney fees are “reasonable and necessary” before granting an award. The court will also examine the duration of the litigation and how each party has handled his/herself throughout its course. If it seems as though one party is instigating unnecessary litigation meant to harass the other party, the court may take this into consideration while determining an award of attorney fees.

 You must provide sufficient evidence to prove your request

You must present sufficient evidence to the court that because of a financial need, you are unable to pay attorney fees. The court will analyze the following to determine your ability to pay:

  • Current Income
  • Your net worth
  • Past earnings
  • Value of Assets

You must also prove that the attorney fees that you have incurred are necessary and reasonable. Also the court cannot deny your request if you prove that you can only afford a “inferior” divorce attorney.

In Florida, the courts follows the “lodestar approach” to come up with the initial estimate of fees you should incur.   This method multiplies a reasonable hourly rate by a reasonable number of hours an experienced attorney would spend on the case.

So, if the judge determines that your attorney has spent an irrationally high number of hours, the court can reduce or deny your attorney fee award.

Also if it is determined that your attorney has presented a claim or defense that he or she should know is “not supported by material facts, the court may also deny or reduce an attorney’s fee award.

Once the lodestar amount is determined, the court will determine the final amount by considering all circumstances relevant to your particular case.

Below are more commonly asked questions that our divorce attorneys receive about whether or not one can recover (or be required to pay) attorney’s fees and costs in a Florida Divorce. Clicking the question will provide you with a detailed answer.

In the event of the death of either party, the court no longer holds jurisdiction over the divorce. However, the court may still hold the authority to grant an award of attorney’s fees. The estate of the deceased party may be ordered to pay attorney’s fees to the other party if the motion requesting the award was issued prior to the death. This works both ways, as the deceased party’s estate may receive an award of attorney’s after his/her death.

According to F.S. 61.16 each party should have access to “similar ability to secure competent legal counsel.” In agreement with this statute, fault has usually not been a deciding factor in the court’s decision to sustain or deny attorney’s fees. Despite this, recent cases have brought about alternative elements for sustaining or denying attorney’s fees. The court will analyze how the litigation is handled by each party and use this as a factor for determining legal fees. If it is apparent that one party is inducing unnecessary litigation, the court may consider this conduct while awarding attorney’s fees.

Under 4-1.5 (3) (A) of the rules and regulations of the Florida Bar, when dealing with a family law matter, an attorney cannot collect payment which is contingent upon finalizing a divorce or the amount of child support, alimony, or marital property awarded. The Florida Bar finds this practice to be unethical and a hindrance toward possible reconciliation. However, the Florida Bar’s note on this regulation states does not apply to any contract for a contingent fee for matters involving “the recovery of post-judgment balances due under support, alimony, or other financial orders.”

A marital settlement agreement is subject to the interpretation of the court as any other contract. The court does not possess the authority to rewrite a valid marital settlement.

 

If one party agrees to pay for attorney’s fees and costs in an agreement, they should only be obligated to pay the fees the court determines are reasonable and necessary to the divorce proceedings. The courts have often ordered a party who has not met the provisions of a marital agreement to pay the other party’s attorney’s fees incurred from enforcing the terms of the settlement.

If one party lacks the financial ability to obtain counsel, the court, under the authority of F.S. 61.16, may order temporary attorney’s fees. The court must consider the financial need and ability to pay of each party and the reasonableness and necessity for temporary attorney’s fees as they would for a final judgment of attorney’s fees. The court has determined the lodestar method of determining attorney’s fees to be inapplicable for temporary awards because it can be difficult to estimate the amount of time needed for legal services in the future. However, evidence should be presented attesting to the reasonableness of the temporary fees prior to the court awarding them.

Yes, F.S. 61.16 (1) provides that attorney’s fees may be awarded for modification proceedings. The successful defense or prosecution of a modification action alone does not determine who will be responsible for payment of an attorney’s fee award. The financial need and ability to pay of each party at the time of the modification proceeding should be the primary factor in the court’s decision in determining attorney’s fees.

The court is authorized to award attorney fees in a contempt or enforcement action under F.S. 61.16 (1). The party seeking enforcement must show that the noncompliant party willfully refused to follow the order. The party seeking enforcement may be awarded attorney’s fees if he/she exhibits need and the opposing party has the ability to pay. The court may take the noncompliance of a party into consideration when determining an award of attorney’s fees even when the party is not found to be in contempt of court. The court should not award attorney’s fees to the noncompliant party if his/her noncompliance is found to be unjustified; regardless of his/her relative financial position.

 

The prevailing authority regarding attorney fees in family law matters is F.S. 61.16 which is provided below:

 

61.16 Attorney fees, suit money, and costs

 

(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, or costs to the noncompliant party. An application for attorney 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 positions 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 or process fees, and other expenses incurred by the clerk of the circuit cout, shall be assessed only against 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; and  (c) Order that the amount be paid directly to the attorney, who may enforce the order in his or her name.

The trial court’s final judgment should make the awarded attorney’s fees payable directly to the attorney. Therefore, the attorney’s fees judgment may be collected as any other separate money judgment. The attorney may enforce the judgment with legal action separate from the divorce proceedings, or through the use of contempt of court. The Supreme Court of Florida developed a system for determining the proof necessary to enforce payment of attorney’s fees and costs. Initially, the party receiving an award of attorney’s fees must prove to the court that the obligor spouse has not met his/her payment requirements. If evidence supports this claim, the obligor spouse must then attempt to prove he/she no longer has the ability to pay. After analyzing the evidence, the trial court will determine whether or not the obligor party has the financial ability to pay the award and whether he/she deliberately chose not to pay. The court will determine the appropriate sanctions and the terms which the obligor must meet in order to lift said sanctions.

Suit money includes a large range of expenditures outside the normal costs incurred through divorce proceedings. This includes expenses for a forensic accountant, real and personal property appraisals, transcripts, custody evaluation expenses, some travel expenses, private detective work, and all other costs required for pursuing or defending an action.

It is not uncommon in Palm Beach County divorce cases for the court to award suit money for the needy spouse to employ a forensic Certified Public Accountant as well as money to hire real and personal property appraisers and funds for depositions and other transcripts. If custody of children is an issue, the court may also order one or both spouses to contribute to the cost of a social investigation of the parties.

A spouse may be awarded suit money under similar circumstances to an award of attorney’s fees. The party seeking an award of suit money must demonstrate an adequate financial need and prove the paying spouse has the ability to pay. The court must also determine that the suit money is reasonable and necessary prior to awarding suit money.

The costs associated with the divorce proceedings include all normal court costs such as filing fees, cost of notice, cost of depositions, cost of preparing copies, court reporter’s fee, and some travel expenses. Costs may also include some expenses incurred outside the courtroom such as expert witness fees and accounting expenses. A party seeking reimbursement for costs must prove that each cost was necessary and reasonable to the divorce proceedings. The trial court has the authority to determine which costs are allowable.The prevailing authority regarding attorney’s fees in family law matters is F.S. 61.16 which is provided below:

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