Attorney’s fees can be expensive, and many times it can be difficult to come up with the funds needed in order to litigate your case against your ex, especially against an ex who has sufficient financial means.
What you may not know, however, is that Florida is a special type of state when it comes to attorney’s fees, and it may be possible that your ex will be ordered to pay some or all of your fees. As outlined in Florida Statute 61.16, we have what is referred to as a “need and an ability to pay calculation.”
What to Know About Attorney’s Fees in Florida
In order to get attorney’s fees from you ex in Florida, one person must demonstrate a need for financial assistance, and the other person must have the ability to pay for them.
When the couple is on equal financial footing, then attorney’s fees are not something you typically see exchanged. However, when one partner has substantially more funds than the other, then you may see it.
In the case of divorce, the fees will typically be first paid out of funds from the marital estate before one side would be ordered to pay. When it is not a marriage, for example as in cases of paternity or post-judgment, then the calculation needs to be done based on each side’s income. When one person is deemed to have substantially more means than the other, then it is typical to see a motion for attorney’s fees and possibly an order mandating those fees be paid.
Ultimately the court has the ability to grant part or all attorney’s fees or deny attorney’s fees, and they can grant or deny for fees:
- Retroactively – those fees that have already been incurred
- Prospectively – future fees
Secondly, you may also be able to seek attorney’s fees based on the bad behavior of the other side. In this scenario, the fee payment would not be based on need and ability to pay; rather, you would be seeking fees based on the bad faith behavior of the other side. If one side is not litigating fairly and appropriately, attorney’s fees can be sought based on the litigious positions the other side is taking or the wrongful actions they have taken in court, such as failing to provide required financial documents.
With divorce, post-judgment issues or any family law concern, it’s important to discuss the issue of fees and the possibility of going after the other side for attorney’s fees. If you have questions about Florida family law, we are here to help. Contact us at the Vasquez de Lara Law Group to learn more.