Who Pays Attorney’s Fees in a Florida Divorce Case


For example if one spouse is the sole breadwinner and support of the family while the other spouse stays at home, takes care of the children and does all of the things a stay at home spouse does to maintain the household; then the court may consider the financial resources of both spouses and order one spouse to pay a reasonable attorney’s fees or temporary suit monies to the other spouse. Ideally, by awarding fees the court is attempting to create a level playing field in terms of allowing both parties to obtain legal counsel with “marital” funds. This does not mean that both parties will be able to hire divorce attorneys who charge the same hourly rate or of the same skill and ability.  The court will listen to testimony on the following factors ( 1 – 4 below) in determining the need of one spouse against the ability to pay of the other spouse in awarding attorney’s fees to a spouse.

  1. The complexity and number of issues in the case; i.e. Children, Child Support, Alimony, Asset and/or business valuation.
  2. The length of the marriage.
  3. How the parties are getting along.
  4. The relative incomes or assets of each party in the marriage.

In the instant example, where one spouse is the sole breadwinner while the other spouse cares for the children and takes care of the home, the court may likely award fees to the non-working spouse. However, keeping in mind the concept of need and ability to pay, the attorney representing the income producing spouse could get creative and propose an equitable distribution strategy to allow the non-income producing spouse to use a portion of the equitably distributed marital funds to pay their own attorneys fees. This takes the focus away from the attorney’s fees and onto the subject of resolving the substantive issues in the divorce case. This strategy will also save the client money by not having to pay fees to go to court to dispute an award of fees or obtain a fee award.

Consistent with the principle of leveling the playing field, the court will likely not award attorneys’ fees to either spouse when the spouses earn the same, or similar, incomes. In this instance, the parties are financially similarly situated; therefore, the playing field is already “level” requiring no award of attorney’s fees.

However, one should not get complacent and think that fees could never be assessed simply based on similarly situated level of skill, education and income. For example: Both spouses are physicians. One spouse earns $ 350,000./annually and the other earns $ 475,000./annually. Although one spouse earns $ 125,000.00 more than the other spouse, the court will likely not award fees based on the lack of “need” in our “need vs. ability to pay” scenario because arguably both spouses are financially able to pay their own attorney’s fees. Nevertheless, let’s assume that the spouse earning $350,000.00 engages in bad faith, vexatious or unnecessary litigation. If the court determines that a party is engaging in unnecessary or vexatious litigation not only will that spouse lose the ability to claim attorney’s fees, in fact the vexatious and bad faith conduct resulting in unnecessary litigation may cost that party an award of attorney’s fees assessed against them.

General rule of thumb regarding attorney’s fees in Florida:

    1. Attorney’s Based on Need and Ability to pay:
      1. Similarly situated incomes – no award of fees; each pays his own fees.
      2. Disparity of income
      1. Court determines whether the amount of the disparity results in a need for one spouse.
      2. If a need is found, then the court will look to the other spouse and determine first the ability to pay, and follow that up with a determination of the factors and complexity of the case to form the basis of their fee award.

NOTE: There is no formula based in law; either common law or statutory; therefore, a skilled attorney can assist you in creating a strategy to either obtain or defend against a fee award.

  1. Vexatious or Bad Faith and Unnecessary Litigation:
    1. Engaging in vexatious or bad faith litigation may result in an award of attorney’s fees against either spouse. Note: Even the spouse who presumably would otherwise have a “need” for an award of legal fees may be Ordered to pay fees to the spouse with the ability to pay, if the court finds the spouse in “need” to have engaged in vexatious or bad faith litigation which results in unnecessary costly litigation.
    2. Conduct to avoid at all costs. A professional and skilled attorney will guide you and hopefully will never recommend or condone an approach which causes conflict to escalate and result in vexatious or unnecessary litigation. A skilled attorney should employ sound strategy to maintain the focus on resolving the substantive issues efficiently and cost effectively. There are many strategies to employ to remove the focus from fees back to mastering the issues and resolving the conflict. This approach will almost always serve to preserve marital funds and save you money.