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Can I Obtain Attorney Fees & Costs From The Opposing Side In Florida?
Divorces or any family action in Florida can be expensive. Depending on the issues on which the parties do not agree, a divorce or any other family legal battle can end up costing thousands of dollars in attorney fees.
The perceived high cost of a divorce or family law attorney can lead some to either not file the legal action at all or attempt to represent themselves.
By not filing for the desperately needed divorce, a party may remain in a harmful or abusive relationship simply because he or she feels a divorce attorney is out of his or her budget. If a party does choose to file for divorce by himself- or herself, he or she may waive important rights or fail to secure a favorable outcome.
Recognizing that some individuals may not have the financial means to afford a family law attorney, Florida statutes enable courts to assess one party’s reasonable attorneys fees against the other party.
Attorney’s fees for marital and family law cases filed in the Florida Family Court must be fixed by an hourly rate. Attorney’s fees are generally not permitted to be contingent upon the results of the case. In other words, contingency fee agreements are generally prohibited.
Capizzi Legal will provide you with a retainer agreement which fixes the hourly rate of the law firm. The firm will discuss the fee agreement with the client in detail and answer any questions the client has regarding the arrangement.
Florida Statutes authorizes Florida courts to award attorney’s fees, suit money, and costs in dissolution, custody, support, enforcement and modification proceedings. In dissolution actions, attorney’s fees may be awarded to a party based on one parties’ need and the other parties’ ability to pay.
The purpose of attorney’s fees in dissolution actions is to ensure that both parties will have the same ability to secure competent legal representation to prepare for their divorce proceedings. Generally, a spouse will be awarded attorney’s fees to be paid by the other side if the requesting spouse cannot afford competent counsel.
Costs are the expenses incurred in maintaining or opposing a legal action. Costs under Florida law will be awarded to a prevailing party. Costs that the losing party must pay are “taxable costs.” These costs include:
- filing fees for pleadings and other court papers
- expenses related to depositions of parties or witnesses
- court reporter fees
Florida’s Attorney Fee Statute
Florida statutes allow courts to order one party to pay the other party’s reasonable attorney’s fees and certain other expenses after considering the financial resources of each party. The court may do this in dissolution proceedings, separate maintenance proceedings, custody proceedings, child support proceedings, enforcement and modification proceedings, and proceedings to vacate final judgments of dissolution.
A party may not be awarded attorney’s fees in any domestic violence proceedings or enforcement actions in which the individual seeking an award of attorney’s fees is found to be a wrongdoer (i.e., one who is denying the other party parenting time or who is not paying child support).
The purpose of allowing the court to award reasonable attorney’s fees is to ensure both parties have access to competent legal counsel and to ensure one spouse does not have an unfair advantage over the other
Prerequisites to Requesting Attorney’s Fees
For a court to consider the possibility of awarding attorney’s fees to one party, it is essential that the request is made at the beginning of the proceedings. Specifically, if an individual is initiating the action, the initial petition submitted to the court must clearly state the request for attorney’s fees. Conversely, if an individual is responding to a proceeding, the first document they are likely to file is an “answer” to the petition. Should the defending party wish to seek an award of attorney’s fees, it is imperative that this request is included in their answer. Typically, if a party fails to request attorney’s fees at the commencement of the proceedings, they forfeit the opportunity to later seek such an award from the court.
Considerations by the Court
When a party has requested an award of attorney fees and or costs, the court must determine whether the request should be granted. The court will look at a number of factors to determine whether an award of attorney fees and costs is warranted. The list of factors is broad, and a court can assign whatever weight to each individual factor.
These are the most common factors the courts typically consider when awarding attorney fees and costs.
Financial resources of the parties.
While not the only consideration, this is probably the most significant consideration when determining if attorney fees and costs should be awarded. The court will look at one party’s need of attorney fees and the other party’s ability to pay. Here the court will examines the financial resources of both parties. This is more than a simple look at the income of the parties. For example, one party may have not much income, but a substantial portfolio of assets such as real estate, collectable items, etc. In such a case, a court may find that an award of attorney fees and costs may not be appropriate, because one party has no ability to pay fees and costs to the other party.
Scope, history, and duration of the proceedings.
Sometimes, a case begins limited in scope, such as the establishment of child support. But as the litigation goes on a myriad of other issues come up, such as the establishment of paternity, parenting plan and a time-sharing agreement and the case now is dragging for months or even years. In such a case, a party who may have initially been able to afford competent legal counsel may find it now too expensive to continue litigation. In such a case, the court may find an award of attorney’s fees appropriate, if the paying party has the ability to pay.
Merits of the parties’ positions.
Should the court determine that one party is engaging in conduct that is intended to harass the other party or to delay the proceedings, it may take such bad behavior into account. In either scenario, the party experiencing harassment or the one not causing delays will inevitably face legal expenses in their defense. The court may conclude that principles of fairness and justice warrant the awarding of reasonable attorney fees, serving both to compensate a party for unnecessary litigation and to penalize or discourage a party from initiating meritless actions.
An actual need for the award.
Florida courts may award attorney’s fees if they find that one side has a relative need for attorney fees and costs. That means, that one party is in an inferior financial position compared to the other side.
Attorney’s Fees Must Be Reasonable
A court, upon deeming an award of attorney’s fees appropriate, is subsequently tasked with assessing the reasonableness of those fees. It will refrain from granting any fees it considers to be unreasonable or excessive. This evaluation is inherently subjective and necessitates a hearing where evidence and testimony will be presented concerning the attorney’s rate, the services rendered, and the total fees sought. Should the court conclude that the attorney’s fees are reasonable, it will issue orders to grant the requested fees. Conversely, if the court determines that the fees are not reasonable, it may establish what it considers to be reasonable fees and award that amount instead.
Temporary Fees v. Final Fees
A court has the authority to grant attorney’s fees at the end of a legal proceeding, and it may also issue temporary orders regarding these fees. Such orders enable one party to have their legal costs covered by the opposing party while the hearing is ongoing. In assessing the appropriateness of these temporary awards, the court evaluates the requesting party’s financial need alongside the other party’s capacity to pay. Similar to the procedure for final awards, temporary awards are determined after the court reviews the financial circumstances, including income and assets, of both parties. It is essential to establish both a demonstrated need and the ability to pay.
Reach Out To Capizzi Legal Today To Fight For Your Award Of Attorney Fees and Costs
It is true that some family law cases can be expensive. But this should not discourage or dissuade someone from seeking legal help.
Courts are empowered by Florida statutes to award one party reasonable attorney fees and costs, both on a temporary and a permanent basis. The purpose of this is to ensure that both parties have access to legal counsel that is of the same general quality.
It would obviously be unfair if one party had the means to afford a high-profile family law lawyer to prosecute or defend his or her case while the other party has to go pro se.
A person considering a divorce or another family law proceeding should speak with his or her attorney early about requesting that the other party pay attorney fees and costs on a temporary or permanent basis. If a party does not request attorney’s fees at the outset of the proceeding, he or she may not be able to recover any fees later.
Whether your family law matters are taking place in Miami-Dade or Broward County, Capizzi Legal can assist you throughout this process by fighting for you to obtain reasonable attorney fees and costs.
To initiate your journey towards a resolution with knowledgeable guidance, please fill out our contact form or book a consultation by using our online calendar. Capizzi Legal, a new take on family law.