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Guide to Attorneys Fees in Florida Divorce Cases

Posted by attorney Eddie Stephens

The fees and costs for dissolution of marriage cases widely vary. The more complex and/or the more contested the issues, the more the dissolution will cost. At an initial meeting, your attorney should be able to provide an estimate of the total cost of a dissolution based on the information you provide.

Your lawyer will expect you to pay a fee and the costs of litigation in accordance with the agreement you make. Sometimes the court will order your spouse to pay part or all of your fee and costs, but such awards are unpredictable and cannot be relied upon. You are primarily responsible for the payment of your legal fees.

In a divorce, it is illegal for an attorney to work on a contingency fee basis; that is, where the lawyer’s fee is based upon a percentage of the amount awarded to the client.

Florida Statute 61.16 governs awards of attorney's fees and costs in Florida dissolution of

marriage proceedings. F. S. 61.16 provides in pertinent part:

“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."

In Rosen v. Rosen, 696 So.2d 697,699 (Fla. 1997), the Court held the purpose of Florida Statute 61.16 is to ensure that both parties have similar ability to secure competent legal counsel. To satisfy this objective, the trial court must look to each spouse's need for suit money versus each spouse's respective ability to pay. Thus, the award of attorneys' fees in dissolution proceedings generally depends on the relative financial circumstances of the parties rather than on who ''won.''

However, the court may consider all relevant factors including 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 in exercising its discretion to award attorney's fees.

The amount of attorney's fees awarded must be reasonable in amount (hourly rate) and duration (total hours). The standard to be applied [need and ability to pay] is the same whether the fees requested are temporary or final.

Interesting enough, the law on attorneys’ fees differs for the Counties governed by the Fourth District Court of Appeal which governs Palm Beach, Broward, St. Lucie, Martin, Indian Rive and Okeechobee counties.

In these counties, you must demonstrate “actual need" as opposed to “relative need". For example, if you had access to $200,000 and your spouse had access to $10,000,000 you should be denied your request for fees because while you have the “relative" need, you do not have the “actual need" for the payment of fees. See Satter v. Satter, 709 20.2d 617 (Fla. 4th DCA 1999).

This concept was reinforced in Hoff v. Hoff, 100 So.3d 1164 (Fla. 2012) when Judge Amy Smith was affirmed for denying the pecunious Wife temporary attorneys’ fees because she had access to $22,000 in marital funds.

It has certainly been a trend over the years for the Court’s to be less generous awarding attorney’s fees in matrimonial cases. Be prepared to fund your attorney until you can go through discovery, attend mediation and ask the Court at a temporary relief hearing.

When one spouse starves out the other, (i.e. eliminates access to funds) then that conduct should enhance one’s ability to obtain an award. While it is quite stressful when one party acts unreasonably during litigation, those facts usually hurts the wrongdoer if you ever end up in from of a judge.

Keep in mind, there are consequences for your actions.

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