Attorney Fee Awards In Divorce and Other Family Law Cases
By Orlando Divorce and Family Law Attorney Eduardo J. Mejias
Practicing Exclusively Family Law Since 2011
Can I Get My Former Spouse To Pay for My Divorce Attorney?
Attorney fee awards are reimbursements of your attorney’s fees by the opposing party. In family law, attorney fee awards are not as common as many people think. Contrary to popular belief, Florida family law clients will not have their attorney’s fees paid by their ex-spouse simply because their ex spouse “started this" or they “won” their case. After all, family law cases have no winners or losers, they settle disputes that have many components. Instead, one’s entitlement to a fee award must be based on a particular statute, a violation of an express judicial order, or a contractual provision. Florida courts refer to these principles as the “American Rule”.
Most Common Reasons For Awarding Attorney Fees
In England, the place of origin of our common law, attorney fee awards are granted to the winner almost by default. But American jurisprudence has distinguished itself by requiring specific criteria to be met to award attorney fees. And in family law cases (such as divorce, or paternity disputes) awarding fees to the "winner" makes no sense, since they have no clear-cut winners.
In Florida family law cases, generally litigants have actually received attorney fee awards for these three reasons: (1) their income is too low relative to the opposing spouse and to their attorney fees, (2) it is part of a contempt action or enforcement of a settlement, (3) it is a punishment for “vexatious litigation” on the part of the opposing litigant.
(1) Income Too Low Relative To Opposing Spouse And Affordability
Chapter 61.16, Florida Statutes is a vehicle for family lawyers to obtain attorney fee awards for their clients. It allows litigants who have far more difficulty affording a lawyer than their opposing parties to petition the court for attorney fees awards. To award attorney fees the family court must find that: (1) the party requesting the fee award genuinely cannot afford their own attorney’s fee, and (2) the opposing party can afford both.
There is no formula or guideline to help make this determination. However, my experience has taught me that my client must earn less than half of the opposing party’s income to be “in the ballpark” for an attorney fee to be awarded. While Chapter 61.16 is often invoked for attorney fee awards in the pleadings, only sometimes do family court judges award them based on it.
(2) Contempt Actions And Enforcement Of Settlements
A litigant that willfully defies a provision of a court order can be held in contempt of court. Most commonly, ex-spouse parents are subjected to motions for contempt for failing to pay court-ordered child support or alimony, or for refusing to adhere to a time-sharing schedule. If the family court judge finds the offending party to actually be in contempt, it will almost certainly be ordered to reimburse the attorney fees paid by the party who filed that motion.
However, the trial court must tailor the attorney fee award in a way that reflects the offending party’s ability to pay. For example, if the attorney of the party filing the motion for contempt charged $1,500, but the offending party only has $1,000 in liquid funds, the latter must be given a reasonable amount of time to pay the award.
Similarly, divorce attorney fee award provisions in settlement agreements (which courts construe as contracts) often call for the fees to go to the party that files a motion to enforce one of its terms. These attorney fees awards in settlement agreements help ensure that they will be adhered to.
(3) Vexatious Litigation
Vexatious litigation is a form of frivolous or bad-faith legal maneuvers that do nothing more than to delay or antagonize. Of course, merely filing a motion that makes the opposing litigant or lawyer feel unpleasant falls short of this standard. As long as a pleading or motion contains some legal merit, the party making the motion will not be penalized simply for filing it, even if it is ultimately denied. Since a litigant’s conduct has to be truly outrageous to be considered vexatious, family court judges rarely award attorney’s fees on this basis.
Call AAA Family Law For An Initial Consultation
If you have questions about paying or receiving an attorney fee award, I encourage you to call AAA Family Law at (407) 260-6001 and schedule an initial consultation. At the consultation: (a) you can explain your specific situation regarding attorney fee awards and (2) I will explain what legal action, if any, could be taken to protect your interests. If such legal action is called for, I will the quote you my attorney retainer fees for representing you. These fees are a flat amount, not an hourly rate whose total is not predictable.
For additional information on our attorney retainer fees and court costs please click on Attorney Fees.