Question: I am contemplating divorce but do not have much money to pay an attorney. My spouse is well to do and manages all the money in our marriage. Could I get an award of attorney's fees as part of my divorce case?
Answer: In Florida, attorneys fees can generally be awarded when authorized by statute, provision of contract or in certain cases where the attorney services improve property or create a final estate. If you have a prenuptial or postnuptial agreement, the agreement should be read to determine if that contract provides for award of attorney's fees. If the agreement provides for attorney's fees, the court may award fees in accordance with the agreement. If the agreement waives attorney's fees, Florida's Supreme Court has ruled such waivers are unenforceable.
Absent an agreement addressing this issue, and if the agreement waives attorney's fees but the waiver is thrown out by the judge, the judge will be governed by Section 61.16 of Florida Statutes. That section provides that the court may order one party to pay the other a reasonable amount for attorney's fees and costs, after considering the financial resources of both parties. The court can award attorney's fees on a temporary basis (i.e. before the case is concluded), at trial to encompass all of the services through trial and even for representation in any appeal.
Focus of the court in the attorney's fees dispute begins with the financial resources of each party. Those resources are reviewed as they exist at time the award is requested. If fees are being considered at conclusion of the case, the financial position of each party at that time is important. If the requesting party has received a substantial amount of assets that produce income, the court may well find that the party's financial positions are adequately balanced so that an award of fees to either would not be justified. That means it is not merely wages of each party that are considered.
If it is determined that fees should be awarded, the court applies what is known as the lodestar method. The court determines the number of hours of attorney services that should have reasonably been needed (which may be less than the actual time involved) and multiplies those hours by a reasonable hourly rate. Complexity of the case and locale can impact both elements.
After the court determines the total amount of reasonable attorney's fees, it further reviews the financials of the parties. Where there is a substantial disparity in position, the court may award all of the fees it finds reasonable. The award can even be to the party who otherwise "lost" on substantial issues in the case. The court can also order that only a portion of the other party's attorney's fees be paid.
Financial position of the parties and determination of reasonable fees is not the only issue in attorney's fees claims during divorce. Courts have held that attorney's fees should not be awarded in excess of a party's contractual liability for payment.
Wrongdoing, harassment and vexatious litigation can also impact the attorney's fees award. When a party has been uncooperative and the cause of needless litigation through lack of cooperation or otherwise, the court can award attorney's fees to the other side. In Johnson v. Johnson, the trial judge split substantial assets between the parties so that at end of the divorce they were in almost identical financial position with respect to both assets and income. Nevertheless, the court awarded the wife Five Thousand Dollars ($5,000.00) in attorney's fees after finding the husband guilty of "vexatious, wanton and oppressive conduct" and that such conduct resulted in additional work by counsel for the wife.
The appellate court confirmed the award, pointing out that courts cannot award attorney's fees for punitive purposes in divorce cases but can award fees where bad conduct results in additional fees incurred by the other party.
Trial judges are given considerable discretion in this area. As long as they have reasonably investigated the financials of the parties and issued specific findings with respect to the lodestar method and basis for their decision, a judge will not usually be reversed on appeal.
In divorce cases, need and ability to pay are usually the primary focus in attorney's fees award. Reasonableness of time and hourly rate are also important. Other factors, such as bad conduct, can have impact. The specific facts of each case will control. Before proceeding further, you should discuss your circumstances with an experienced divorce attorney and certainly do so before you conclude that you cannot afford an attorney and should therefore proceed without counsel.
By: William G. Morris, Esquire
William G. Morris is an attorney with offices at 247 North Collier Boulevard on Marco Island, Florida. His practice covers a broad range of subjects, including civil litigation, real estate, business and corporate law, estate planning and probate, domestic relations and contracts. He writes this column periodically with respect to legal matters that frequently affect non-lawyers. The information contained in this column is not intended as legal advice and, of necessity, is generalized. For questions about specific circumstances, the reader should consult a qualified attorney.
Questions for this column can be sent to: William G. Morris, e-mail: wgmorrislaw@embarqmail.com or by fax, (239) 642-0722 or
The Marco Island Eagle
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