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In Florida, the divorce courts may award one spouse attorney’s fees and costs if that spouse has a need and the other spouse has an ability to pay. 

Because the language of the statute is permissive, the question of whether one spouse will have to pay the attorney fees and costs for another spouse, or the question of whether the spouse with little to no money will be awarded the attorney fees and costs to litigate on the same footing as the other spouse, causes great concern at the commencement of the divorce process.  Your divorce attorney may also suggest that your case requires other professionals such as a forensic accountant, psychologist, vocational expert, appraisers or other professionals.  These professionals need to be paid.  You may be wondering, “How do we pay for this?”

Need and Ability to Pay

Florida Statutes state that “from time to time, courts may order a party to pay a reasonable amount of attorney’s fees, suit money and costs to the other party after considering the financial resources of both parties.”  What Florida law makers meant when they said, “after considering the financial resources of both parties” is whether one spouse has a need for attorney’s fees, suit money or costs and whether the other spouse has an ability to pay.  The test is not either/or, it is inclusive – there must be a need and there must be an ability to pay. If there is no need, then there will be no order to pay attorney’s fees.  If there is a need but no ability to pay, then there will be no order to pay attorney’s fees.

How is need or ability to pay determined?  

During your divorce process, you and your spouse will both fill out and sign under penalty of perjury a financial affidavit.  This financial affidavit details your income each month, your monthly expenses, and your assets and liabilities.  It will also detail contingent assets and liabilities.  A contingent asset or liability is an asset or liability that hasn’t happened yet or isn’t realized yet.  For example, if you are involved in a lawsuit through your business and you are being sued personally for unpaid overtime.  The amount of the unpaid overtime sought by the lawsuit would be considered a contingent liability.  If a family member recently passed away and left you a bequest in his or her will, but you have not received that bequest, the value of the bequest would be listed on your financial affidavit as a contingent asset.

The financial affidavits filled out by you and your spouse are the first and main step in determining whether one of you has a need for fees and the other has the ability to pay for fees.  When there is an obvious need and an obvious ability to pay, the attorneys usually come to an agreement regarding payment of temporary attorney’s fees, suit money and costs.  You and your spouse can designate an asset from which all fees, suit money and costs are paid from, or agree to an award of temporary fees and costs while waiting to attend a hearing or mediation.

There are many cases interpreting what ‘need’ is.  This is a factual determination and your attorney will discuss with you the various factors and how they apply to your case.  For example, if a spouse has no extra money per month out of his or her income to pay an attorney, and has no other assets to pay attorney’s fees from, then there is likely a need for attorney’s fees, suit money and costs to be awarded.

There are many cases interpreting what ‘ability to pay” is.  This is also a factual determination and your attorney will discuss with you the various factors and how they apply to your case.  For example, if a spouse can pay for attorney’s fees, suit money and costs out of income, then it is likely an ability to pay will be determined.

What will the court consider before awarding attorney’s fees, suit money and costs?

The Court will first consider the information contained in the financial affidavits.  In addition, the Court will consider any non-marital assets owned by each spouse.  For example, if you or your spouse have bank accounts or investment accounts that were acquired prior to your marriage, those accounts can be tapped to pay attorney’s fees, suit money and costs.  That means if you are the spouse who does not have enough income to pay attorney’s fees, and you have a nonmarital account with money, you may be required to pay your attorney’s fees out of your own nonmarital funds.  If you are the spouse who is being asked to pay attorney’s fees and costs, and you have a nonmarital account with money, you may be required to pay your spouse’s attorney’s fees and costs out of that money.

Florida is concerned with making sure both spouses have access to attorneys during their divorce matter.  It would be patently unfair and against the public policy of Florida if the spouse with access to money was the only spouse who could afford to be represented by an attorney.

If you have further questions regarding family law and attorney’s fees and costs issues, do not hesitate to contact the divorce attorneys at Fixel Neave, P.A.  We offer free consultations and accept all major credit cards as payment for divorce services.  We can be reached by calling 954-981-2200 or by completing our online contact form.

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(954) 981-2200

12 SE 7th Street
Suite 601 
Fort Lauderdale, FL 33301