Many South Florida residents are hesitant to file for divorce because the disparity in financial resources between spouses makes it difficult for the married partner with less financial resources to afford comparable legal representation. However, Fla. Stat. Sec. 61.16 (2012) is designed to address this potential barrier to obtaining legal representation in a Florida marital dissolution (divorce) case. This provision directs a court to analyze a number of factors when determining whether the higher earning spouse should contribute to the attorney fees of the lower earning spouse’s attorney’s fees in divorce proceedings as well as post-judgment proceedings including appeals.
When there is significant disparity in the income between the parties, a Florida judge in a divorce case may order the spouse with the higher income to make periodic payments directly to the other spouse’s attorney to cover attorney fees based on the paying spouse’s ability to pay and the recipient spouse’s financial need. The purpose of this statute is to ensure the ability of the financially disadvantaged spouse to obtain legal representation in a Florida divorce proceeding. While a disparity in income is not the exclusive criteria, the ability to pay by one spouse and financial need of the other spouse are the key considerations.
When a court orders one spouse to make a contribution to the other spouse’s attorneys’ fees in a divorce proceeding, the court must make factual findings to justify both the amount of the award as well as the payment terms. Factors that a court may consider when considering an advance of attorneys’ fees by one spouse on behalf of the other include the following:
Higher earning spouse’s ability to pay
Financially disadvantaged spouse’s need
History of the litigation
Merits of each spouse’s position
Whether the party seeking fees has engaged in vexatious litigation
This means that while the relative financial position of the parties to a divorce is the key factor in making interim awards of attorneys’ fees to the other spouse, the court may also consider the merits of particular motions or proceedings for which attorney fees are sought. When a motion or hearing is brought, which is frivolous and/or primarily intended to harass the other party, the court may deny an attorney fee advance to the other spouse despite the relative financial positions of the parties.
Consider the following examples:
Example 1: A mother refuses to comply with parenting plan orders in a divorce decree so the father brings a motion to modify the parenting plan. The husband makes several times more than the mother. The court may still deny a request for attorney fees by the mother because of her actions designed to frustrate the father’s custodial time under the divorce decree.
Example 2: Wife brings a modification proceeding to increase alimony but fails to assert a change in circumstances. The court may deny the wife an attorney fee request because the motion is essentially frivolous given that a change of circumstances is a legal requirement for a modification of alimony.
The jurisdiction of the court to award attorney fees does not terminate after a judgment of divorce. The court can continue to order attorney fee advances for post-judgment enforcement proceedings for contempt or appeals.
Where the litigation process is abused to harass the other party or to bring motions and claims that are without merit, the court may also award attorney fees in the form of sanctions. Fla. Stat. 57.105(1) provides that an award of attorney fees is appropriate when:
"The losing party or the losing party’s attorney knew or should have known that a claim or defense when initially presented to the court or at any time before trial:
Was not supported by the material facts necessary to establish the claim or defense; or
Would not be supported by the application of then existing law to those material facts.”
Ultimately, the goal of the court is to ensure that the resolution of divorce proceedings is not simply a factor of who has the financial resources to afford effective legal representation. Florida law governing attorney’s fees in a Florida divorce are intended to level the playing field by ensuring that both parties have sufficient resources to retain effective legal representation. This means that even if your spouse has exercised primary financial control of your family finances as the primary breadwinner, you need not feel that you cannot seek a divorce. The court will typically help you obtain assistance in paying for attorney’s fees on a periodic basis, especially where there is a substantial disparity in income. If you are the higher wage earner, by contrast, you are protected from paying for frivolous motions brought for the purpose of harassment.
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