In a divorce, often one party may have more financial security than the other party, either by income, inheritance, or the like, thus putting the other party in a financial situation that makes it difficult to pay attorney’s fees. When hiring a lawyer for a divorce or modification action in Florida, the concern is the price for an attorney and whether she or he will have the ability to pay for an attorney. The other concern is that, knowing the financial situation, the other party will have the money available to pay for an attorney and that will require the party without disposable income to borrow money from family or represent himself or herself. As a Jacksonville family law and divorce attorney, I use the consultation to determine what the issues are and approximate the attorney fees associated with the action, also I educate the potential client about Florida law as it relates to attorney’s fees. Florida actually provides for the court to determine whether one other party will be responsible for the other party’s attorney’s fees and costs. Florida Statute 61.16 provides parameters for the court to use in determining the award of attorney’s fees and costs to the needing party.
When a party does not have the financial means to pay for his or her own attorney’s fees and associated costs (e.g. Filing fee; deposition costs, etc.), then the court may look at the financial resources of both parties to determine if the other party does have the financial ability to pay reasonable fees and costs for the other. For example, A has been a homemaker and cared for the children during the fifteen (15) year marriage and B has been the breadwinner and makes approximately $200,000 per year. When A decides to file for divorce, A does not have income available that is nonmarital at the time of filing for the divorce. A feels that an attorney is necessary in the divorce and hires an attorney and files for divorce, which has a cost of $409 in Jacksonville and a cost is associated with serving B the divorce papers. A’s attorney can request, in the petition for divorce and with a request and motion for temporary needs, that B pay for A’s reasonable attorney’s fees during the divorce and at the end. The court would look at the financial situation of both parties and determine if A is in need of B paying A’s attorney’s fees and costs and whether B has the financial ability to do so.
However, if the reason for the case is the inaction or failure to comply with the court’s prior order by the needing party, and the court rules against the needing party, then often times the other party will not be required to pay attorney fee’s and costs for defending the action. For example: A is awarded child support in the original divorce order to be paid by B. A has more money than B due to an inheritance of $100,000.00, which is and was nonmarital, and B makes $30,000 per year. A hires an attorney and files a Motion for Contempt against B for failure to comply with the court order. B requests attorney’s fees and costs to defend against the action. The court finds that B has not complied with the order and is, therefore, in contempt of court. The court does not have to award B attorney’s fees since B’s own actions lead to the hearing and need for attorneys. In fact, B could be on the hook, if shown that B has the ability to contribute to A’s attorney’s fees, to pay back to reasonable attorney’s fees incurred as a result of B’s actions.
You should speak with an attorney about your rights and options in a divorce or other family law proceeding to make certain that you request the court provide you with reasonable fees and costs or defend against the request.