Florida Family Lawyer Blog

In the previous post, we discussed that Florida law allows a party to a divorce proceeding to make a claim for attorney’s fees from the opposing party. More specifically, if one party makes such a request, the court will primarily consider the financial resources of both parties to make an order for one party to pay a reasonable amount to the other party for attorney’s fees, suit money, and costs. Because the relative financial resources of both parties to a divorce proceeding is the principal criterion the court examines in making this determination, I believe it is essential explore the concept of relative financial positions more fully.

Florida courts have repeatedly stated that when looking to the relative financial position of the parties, the first two questions which must be answered are: (1) does one party need attorney’s fees from the opposing party to pursue this divorce?; and (2) does the other party have the ability to pay for the other’s attorney’s fees? To make this determination, the court will require each party make an evidentiary showing of their respective assets and liabilities and make a comparison of each party’s independent financial resources. Recall from the last post that this comparison will not take into account money that a party’s family and friends are willing to share as aid. Also recall that it is not necessary that one party be completely unable to pay attorney’s fees in order for the other party to pay for them; it is only necessary that the party requesting attorney’s fees be in a substantially inferior financial position. A calculation of each party’s independent financial resources takes into account all circumstances and resources, including benefits that significantly enhance one party’s financial position, net income (and income-earning abilities), and the extent of their financial liquidity (like if the party’s assets are readily available).

Imagine a common situation in many states, including Florida. A husband and wife had been married in Fort Lauderdale for 19 years. During their marriage, the husband worked full-time making a great yearly salary while his wife remained unemployed to take care of the family. On their 19th year of marriage, husband and wife decided to get a divorce. That same year, the husband received a $100,000 bonus at work. Realizing the disparity in income between both parties and her inability to afford counsel, the wife requested attorney’s fees from her husband during the dissolution proceeding. In a similar case decided in Florida, the husband was required to pay all of the wife’s attorney’s fees and costs in the dissolution proceeding.

In another scenario, Florida courts have been reluctant to deny attorney’s fees to a requesting party simply because he or she has assets (because those assets are not necessarily readily available). For example, attorney’s fees were awarded to a former wife who was in an inferior financial position to her husband, and who would have to invade her assets to pay attorney’s fees for a dissolution proceeding. Similarly, in another case, a former wife was entitled to attorney’s fees and costs, even when all marital assets were equally distributed and the wife was awarded permanent period alimony. That court awarded the former wife attorney’s fees rather than having her invade her capital assets to pay the litigation costs because it would decrease her income. Furthermore, the husband was in a position to pay for all his fees and her fees combined out of his current income without digging into any of his own assets or investments.

It becomes clear that income-earning abilities appear to be of primary concern when making a financial comparison of the parties when one party requests attorney’s fees from the other party in a divorce proceeding. If you are going through a divorce and are a party that is in a substantially inferior financial position, it would be wise to discuss making a request for attorney’s fees with your attorney.