Will my spouse be required to pay my attorneys’ fees?
Attorneys’ fees and costs may be awarded to one party in a divorce case pursuant to sections 61.13 and 61.17 of the Florida Statutes. Additionally, the statutes authorize an award of attorneys’ fees in separate maintenance, custody, support, enforcement, and modification proceedings. In determining whether it is appropriate to award attorneys’ fees, a court must look to whether the requesting party has a need and the paying party has the ability to pay. The Florida legislature devised the statute with the intent that both parties in a divorce proceeding should have equal opportunity to retain legal counsel. In other words, the court system does not want one spouse to be at a disadvantage because they are unable to afford legal counsel.
In order for a court to award attorneys’ fees and costs to the other party, the requesting party must ask for the attorneys’ fees in their initial petition, counter-petition, or answer. Failure to request attorneys’ fees and costs in the initial document may act as a waiver and prevent the party from seeking attorneys’ fees in the future. As a matter of due process, all parties have the right to know what claims are sought. A party who fails to plead for attorneys’ fees in their initial pleadings usually cannot later ask for fees as it would constitute an unfair surprise.
During a divorce, what are reasonable attorneys’ fees?
The court is only authorized to award attorneys’ fees and costs that are reasonable. In determining whether the attorneys’ fees and costs are reasonable, the court may look to a number of factors including, the scope, history, and duration of the divorce proceedings. The court may also consider the merits of each party’s position, the financial resources of the parties, and the actual need for the award. The court will not award attorneys’ fees that are unreasonable, excessive, or unrelated to the proceeding at hand. For example, attorneys’ fees incurred during a domestic violence injunction hearing are not recoverable as part of a divorce proceeding. Additionally, the court should not award attorneys’ fees where the fee requested is not reasonable based upon the legal fees normally charged in the community for an attorney with similar experience. Finally, the court will not award attorneys’ fees for the actions of an attorney where it is found that the attorney filed frivolous motions or engaged in stalling tactics.
Temporary Attorneys’ Fees
A trial court has the discretion to award temporary attorneys’ fees using the same standard listed above, namely, need and ability to pay. Case law has consistently held that a lawyer for a spouse with little to no income is not expected to become a banker by incurring fees without the opportunity for payment until the conclusion of the case. Again, this would put an impecunious spouse at a disadvantage as they may have difficulty retaining an attorney who is willing to take on his or her case. Courts have the ability to award temporary attorney’s fees throughout the pendency of a matter in order to allow a spouse to find competent legal counsel to represent him or her. The case law for temporary attorneys’ fees does not require specific findings, as long as there is sufficient evidence in support of the award on the record.
Attorneys’ Fees for Vexatious Litigation
Attorneys’ fees may be awarded as a punitive measure in response to one party’s litigation of frivolous or non-meritorious claims. Additionally, a court may consider violations of court orders as a basis for limiting or denying a fee award regardless of need and ability to pay. For example, if one party deliberately interferes with the visitation of another party in violation of a court order, that party may be required to pay the attorneys’ fees of the other party, regardless of need and ability to pay.
A party’s financial condition should not shield them from the consequences of their conduct within the judicial system. When a party abuses the legal system or engages in conduct, which results in needless litigation and legal fees, that party should be responsible for their own fees and possibly the fees of the other party. The party’s financial condition, whether financially prosperous or destitute, is not a factor to be considered when determining fees for frivolous or non-meritorious claims.
Offers of Settlement
In family law and divorce cases, a court cannot deny a claim for fees solely based on the failure to accept an offer to settle. However, the court may consider the settlement offers that were conveyed when making a determination as to whether to award attorneys’ fees. In cases where the court finds that the litigation was prolonged due to one party’s unreasonable refusal to accept a reasonable settlement offer, that party must bear the risk of rejecting such an offer. For example, if the Wife rejected a pretrial offer that provided for equitable distribution that was $20,000 more favorable to her than what she ultimately received at trial, the court may reduce the amount of attorneys’ fees she has requested by the amount expended pursuing that claim after the settlement offer was conveyed.