ATTORNEY’S FEES IN DIVORCE IN LAKELAND FLORIDA
One of the most common questions asked at initial office conferences is whether the opposing party in a divorce case must pay the other side’s legal fees.
A common scenario is a parent who has primarily worked as a homemaker during the marriage. Perhaps it is a parent who has not made working outside the home a priority due to child rearing responsibilities. Perhaps a parent who did not take job promotions in order to be available for a child’s needs. In any event, the situation involves a spouse with smaller earning capacity (or no earning capacity) than the other spouse.
Showing a “Need” and an “Ability to Pay” Attorney’s Fees is Required
Florida law generally provides that a party seeking to have the opposing party pay some or all of the legal fees must show two things primarily: first, the party seeking fees must show that there is a “need” by the party requesting legal fees from the opposing party. Secondly, the party seeking attorney’s fees from the other party must show that the other party has the “ability to pay” some or all of the client’s legal fees.
Absent the ability to put on evidence that one spouse has a “need” and the other spouse has the “ability to pay” towards attorney’s fees, the Court would expect each party to pay for their own legal representation. It is not enough simply to show that one client needs help with legal fees or attorney’s fees, you must also present the Court with sufficient facts to demonstrate that the other party has assets he or she can use to help pay attorney’s fees or you must show the Court that the other party has an income from which attorney’s fees can be paid.
“Need” and “Ability to Pay” Are Not the Only Criteria
Almost 20 years ago, the Florida Supreme Court established in a case called Rosen v. Rosen that one party’s “need” and the other party’s “ability to pay” are not the only criteria by which the Courts will determine if one party owes some or all of the attorney’s fees to the other party.
Rosen established, for example, that a party’s conduct during the litigation can be used to justify an award of attorney’s fees to the opposing party. If a party engages in frivolous discovery, or if a party begins to use the legal system to harass an opposing party, that type of conduct can be used to justify awarding a spouse some or all of the legal fees expended.
Rosen was the case used by the Florida Supreme Court to establish that the Florida Legislature did not intend to limit the Courts to just a review of a family’s financial circumstances when considering whether to require one side to pay the other side’s attorney’s fees.
Just Having a Greater Income Does Not Equate With an Obligation to Pay Attorney’s Fees to the Opposing Party
Simply having a greater income or greater assets does not mean that you will necessarily have to pay the other side’s legal costs or attorney’s fees. For example, one Florida case dealt with a Husband who had an admitted income 22 times that of the Wife’s income! Despite having such a huge income when compared to that of the Wife, the trial court denied the Wife’s request for attorney’s fees. The trial court noted that each party had removed marital assets from a joint bank account prior to the divorce being filed and that the Wife had removed enough money from that back account to pay for her own attorney’s fees. The fact that the Husband earned far more than the Wife did not enter into the Court’s decision since the Wife, by removing marital assets, did not have the required “need” for an attorney’s fee contribution.
A Trial Court’s Decision on Whether to Require Payment of Attorneys’ Fees is Hard to Reverse
When the trial Court has heard argument on whether to approve a party’s request for a contribution towards attorney’s fees or legal costs, the trial Court enters an Order announcing the Court’s decision.
This Order will determine whether attorney’s fees are owed and, once entered, the Order is difficult to appeal successfully since a trial Court’s decision on such issues are largely considered discretionary. In order to successfully challenge a trial Court’s determination, the party appealing such a decision must show the appeals court that the decision constituted an “abuse of the trial Court’s discretion”. That is a very difficult-but not impossible-task.
Since it is difficult to successfully appeal a decision on attorney’s fees, it is vitally important that your presentation to the trial Court on this issue be clear, concise and persuasive as you may not get another chance to have the Court reconsider this issue until the final hearing.
You can Request Not Only Attorney’s Fees Due and Owing but Also Request Attorney’s Fees for Anticipated Work in the Future
Most frequently, the lawyer for the party seeking attorney’s fees has already been involved in the divorce case for some time-frequently months. During this time, the lawyer has been paid very little or sometimes nothing at all. The trial Court is asked in these situations to require the opposing party to pay some or all of the lawyer’s bills incurred from the time of filing up to the time of the hearing on attorney’s fees.
Many times, however, the party seeking lawyer’s fees asks not just for monies already owed to the lawyer for past work, but also money that will be incurred in the future for lawyer’s fees and trial costs.
Trial courts have the ability to grant not only the past lawyer’s bills but also a reasonable amount of money for anticipated lawyer’s fees and trial costs in the future. In these cases, the party seeking such money must show the Court not only that the past lawyer’s bills are reasonable but also that the proposed budget for future expenses and lawyer’s fees is also reasonable under the circumstances.
Divorce law is unique in that the law allows you to ask your spouse to help pay for the costs of suing him/her for that divorce. The rationale for allowing this is simply that the Courts will permit one party to have a legal/financial advantage over the other simply because that party has a greater earning ability or greater assets.
It would be unfair to let a high wage earning spouse financially overpower a lesser earning spouse who does not have the resources to hire competent lawyers. To level the playing field, the Courts under proper circumstances and with proper proof, will require that some or all of the lawyer’s fees be paid by the higher earning spouse.
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