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When the Other Spouse Has to Pay for Your Attorney’s Fees

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Divorce cases are known for provoking aggressive and emotional responses in spouses that reflect the underlying breakdown of the marriage. Ideally, this type of reaction can be set aside so the parties can work together to form an amicable settlement acceptable to everyone. However, sometimes one spouse decides that litigation is the only way to get what he/she wants, or the dynamics of the divorcing parties do not allow for productive negotiation. In either case, a protracted court case will quickly run up legal bills and associated costs that can cause financial strain. This worry can lead some spouses to stay in abusive or unhealthy marriages, or to try to represent themselves. Unfortunately, self-representation can result in a person giving up important rights in order to settle the case quickly. Typically, each party is responsible for his/her own legal fees, but Florida law does permit a court to order one party to pay the reasonable legal fees of the other based upon the financial resources of each. An overview of the procedure to request legal fees, and when a court is likely to grant such a request, will follow below.

When a Party Can Request Fees and Prerequisites

The purpose behind an award of legal fees is to ensure each party has the ability to retain competent counsel, and prevent a spouse from gaining an unfair advantage merely because he/she can afford to pay more. Courts are more concerned with this possibility in family law cases because of the sensitive issues involved, and as a consequence, Florida law authorizes a judge to grant attorney’s fees in certain family law cases, including those related to divorce, child custody, alimony and child support. Importantly, this type of request must be made in the very first filing made with the court, i.e., the divorce petition if it is the spouse initiating the dissolution, or the answer if it is the spouse responding. Failure to make a request at the beginning usually prevents him/her from asking for fees later.

Court’s Considerations

When one or both parties ask for attorney’s fees, the court must decide if the request has merit, and if sufficient justification exists to grant it. The court has wide discretion in the factors it can consider when deciding this issue, and some of the factors typically used include:

  • The financial resources of each party. This factor, while not the only one, will primarily drive a court’s decision. This assessment will not be limited to a party’s income, but will encompass a review of all the assets a party has at his/her disposal.
  • Case history. The duration and scope of a case will also be a consideration, with the court looking to see if the contested issues in the case expanded significantly since the start, and if one party was primarily responsible for additional litigation.
  • The merits of the party’s request. For this factor, a court will look at whether one party seems to be taking steps to harass the other or to stall the case. If so, awarding attorney’s fees would reimburse the innocent party for needless litigation, and deter the other party from filing additional frivolous claims.
  • The need for the award. Related to the financial resources of the parties, the court will also assess whether the party requesting legal fees has an actual need for the award. Basically, unless the party has to use funds earmarked for basic living expenses to pay attorney’s fees, the court is unlikely to grant this request.

Reasonableness

Finally, the amount requested must be reasonable, which is a subjective measurement by the court, based on the prevailing rate for similar services in the legal community and whether the attorney has filed frivolous motions. If the court finds the fees to be unreasonable, it will adjust the award to a level it considers appropriate instead.

Consult a Florida Family Law Attorney

The divorce process is inherently difficult, and an experienced divorce attorney can take some of the pressure off you. The Fort Lauderdale law office of Joyce A. Julian, P.A. has years of experience representing clients in divorce cases, and she will work to ensure you receive a fair settlement that reflects your interests as a parent and secures your financial needs. Contact the office today for a free consultation.

Resources:

leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0000-0099/0061/Sections/0061.16.html

leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0000-0099/0057/Sections/0057.105.html

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