Florida State Case Law Motion to Pay Attorney Fees in Family Law Cases

Can My Spouse Be Ordered To Pay My Chaser Fees in Florida

It is no hole-and-corner that divorces tin be expensive. Depending on the issues present in the divorce on which the parties do not agree, a divorce tin (but may not always) end up costing thousands of dollars in attorney's fees. The perceived high toll of a divorce attorney tin can pb some to either non file for divorce at all or attempt to represent themselves. By not filing for divorce, a party may remain in a harmful or abusive relationship simply because he or she feels a divorce attorney is out of his or her upkeep. If a party does cull to file for divorce by him- or herself, he or she may waive important rights or fail to secure a favorable outcome.

Recognizing that some individuals may not take the financial means to afford a family unit law attorney, Florida statutes enable courts to assess 1 party's reasonable attorney'due south fees against the other party.

Florida's Attorney Fee Statute

Florida statutes allow courts to order one party to pay the other party'southward reasonable attorney's fees and certain other expenses after considering the financial resources

of each party. The court may do this in dissolution proceedings, separate maintenance proceedings, custody proceedings, kid support proceedings, enforcement and modification proceedings, and proceedings to vacate final judgments of dissolution.

A party may non be awarded chaser's fees in any domestic violence proceedings or enforcement actions in which the individual seeking an award of attorney'due south fees is found to be a wrongdoer (i.e., one who is denying the other party parenting time or who is not paying kid support).

The purpose of allowing the courtroom to award reasonable chaser's fees is to ensure both parties have access to competent legal counsel and to ensure one spouse does not have an unfair advantage over the other. For example, it would be unfair and would create a risk that one party could take advantage of another if one spouse had the means to hire a prestigious family constabulary business firm while the other spouse needed to rely on the counsel of a legal assistance organization.

Prerequisites to Requesting Chaser's Fees

In order for a courtroom to even consider awarding ane party chaser's fees, that party must request them at the outset of the proceeding. That is, if the person is the one bringing the activity, the initial document filed with the courtroom (normally called a "petition") must betoken that that item political party is requesting the court to honor him or her attorney's fees. If the party is defending a proceeding, then the first document that that individual will likely file is an "reply" to the petition. If the party defending the action wishes the courtroom to award him or her attorney's fees, then he or she must ask for them in the answer.

For instance, suppose Maria files for divorce against her spouse Jorge. Maria does not have many assets in her name and does not believe she can beget to pay the attorney'south fees she volition incur. When Maria files her petition for divorce with the court (which begins dissolution proceedings), Maria volition demand to include in her petition a asking that the court award her chaser'due south fees. Likewise, if Jorge believes he should be awarded his attorney'southward fees, he would include this asking in his answer to Maria'due south petition.

Usually, if a political party does not asking attorney's fees at the outset of the proceeding, then that party cannot after ask the court to award him or her attorney's fees.

Considerations by the Courtroom

When one or both parties have requested that they be awarded reasonable attorney'south fees, the court must determine whether the request should be granted. In doing so, the court volition look at a number of factors to gauge whether such an award is warranted. The list of factors a court can consider is broad, and a court can assign whatever value or importance to any individual gene.

Some of the factors that courts typically consider when determining if such an award is proper include:

• Financial resources of the parties . While not the only consideration, this is probably the nearly significant consideration when determining if attorney's fees should be awarded. The court examines the financial resource of both the party requesting fees and the resources of the party against whom the fees are sought. This is more than a simple look at the income of the parties. One party may be found to not have much present income but have meaning assets (such every bit existent estate, valuable collectors' items, etc.). In such a case, a court may detect that an award of chaser's fees is non appropriate.

• Scope, history, and duration of the proceedings . It may be the case that one party began a proceeding that was limited in nature (such every bit establishing a kid back up amount) but now the proceeding is encompassing a myriad of issues and has dragged on for several months. In such a case, a party who may take initially been able to beget competent legal counsel may find the bill much more difficult to pay. In such a case, the court may find an laurels of attorney'due south fees advisable.

• Merits of the parties' positions . If information technology appears to the court that 1 party is acting in such a manner as to harass the other party or to stall the proceedings, the courtroom may take this into consideration. In both cases, the party being harassed or the party that is non stalling will necessarily incur legal fees in defending him- or herself. The court may find that fairness and justice support an award of reasonable chaser's fees, both as a means of reimbursing a party for needless litigation and as a ways of punishing or deterring a party from bringing meritless proceedings.

• An actual need for the award . A minority of Florida courts may award attorney's fees if they find there is a relative demand – that is, where one party is in an junior financial position compared to the other spouse. The majority of courts, however, look for the party requesting the fees to accept a demonstrable, actual demand for the fees. In other words, if the party requesting attorney'due south fees cannot rent competent counsel without dipping into the marital estate or marital assets, alimony, or income that he or she needs for basic living expenses, the court is more than probable to observe the award to be appropriate.

Attorney'due south Fees Must Be Reasonable

Fifty-fifty if a court finds an award of attorney'south fees to exist appropriate, the courtroom must then make up one's mind what fees are reasonable. The courtroom will not accolade attorney's fees that information technology finds unreasonable or excessive. This is a subjective determination the court must make after holding a hearing on the thing. At the hearing, the court will receive evidence and testimony regarding the attorney's rate, the work performed, and the total fees beingness requested. If the court finds that the attorney's fees are reasonable, the court will enter orders awarding the attorney'south fees as requested. If the court finds the attorney's fees are not reasonable, the courtroom may then make a finding as to what it believes "reasonable" fees would have been and award that corporeality instead. Merely in special circumstances will a court honor only a percentage or fraction of attorney's fees.

There are a couple of obvious situations in which a court may observe the chaser'southward fees requested to be unreasonable. These situations include:

• An attorney is requesting a high fee not in line with the legal community and/or the attorney's experience . If the courtroom believes the fee being charged past the lawyer is out of line with either the fees charged for like work past other attorneys in the area or is not appropriate given the lawyer's skill level, the fee amount may be institute to exist unreasonable. For instance, it would exist completely unreasonable for a newly admitted family unit lawyer to charge a fee of $one,000 per hour for a simple divorce. A approximate is not likely to honour such attorney's fees. In a similar vein, a party requesting attorney's fees for an chaser who charges a reasonable hourly fee but spends an unreasonable amount of hours on a proceeding may find that the asking is denied by the courtroom.

• An chaser filed frivolous motions and pleadings or a political party engaged in stalling tactics . An attorney has a general obligation to only file those motions and other documents with the courtroom that have some merit to them (not necessarily the aforementioned as motions and documents that have a chance of success). If an attorney files motions or documents for which there is no audio legal or policy argument, or for the purpose of delaying the resolution of the ultimate issues in the case, a court may deny the attorney's fee request.

Temporary Fees v. Final Fees

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Only as a court can award chaser'due south fees at the conclusion of a proceeding, a court may enter temporary orders concerning attorney'south fees. This would allow 1 party to have their legal expenses paid for by the other political party during the pendency of the hearing. In determining whether such temporary awards are appropriate, the court considers both the need of the political party requesting the temporary fees likewise equally the other party'south ability to pay. Like the procedure for final awards, temporary awards are made afterwards a court considers the financial situation – including income and assets – of each political party. Both a demand and an power pay must be found.

For instance, suppose Maria requests temporary attorney'due south fees from Jorge. If the courtroom finds Maria has the income and/or assets to pay her legal fees, a court is non probable to award her temporary attorney's fees, even if Jorge has the ability to pay such fees. Also, if a courtroom finds Maria's financial state of affairs is such that she needs her legal fees paid temporarily, just besides finds that Jorge does not have the income and/or assets to pay both his legal fees and Maria'southward legal fees. The courtroom in this situation volition not award Maria temporary legal fees based on Jorge's lack of an ability to pay.

Decision

It is truthful that some divorces can be expensive. Just this should not discourage or dissuade someone from filing for divorce. Courts are empowered by Florida statutes to laurels 1 party reasonable chaser'southward fees, both on a temporary and a permanent footing. The purpose of this is to ensure that both parties accept access to legal counsel that is of the same full general caliber. It would exist obviously unfair if i party had the means to beget a high-profile divorce lawyer to have the other party "brand practice" with less-qualified counsel simply because he or she could not afford better counsel.

For final awards of chaser's fees, in determining whether such an accolade is appropriate, courts will primarily consider the fiscal situations of the parties – including the income and assets available to each party. A court can also consider how long the proceeding has dragged on and whether 1 political party is either harassing the other or acting in a way designed to filibuster the ultimate resolution of the issues.

For temporary awards of attorney's fees, which laurels ane party his or her chaser's fees during the pendency of a proceeding, the main consideration is whether ane political party has a demand for attorney's fees and whether the other party has an ability to pay those attorney'south fees. Over again, the court volition consider the income and assets of each party in making this determination. There must be both a need for the temporary fees besides every bit an ability to pay the fees.

A person considering a divorce or another family law proceeding (kid support, parenting time, etc.) should speak with his or her attorney early about requesting that the other party pay chaser's fees on a temporary or permanent basis. If a party does not request chaser's fees at the start of the proceeding, he or she may not be able to recover any fees after.

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Source: https://www.myfloridalaw.com/divorce/attorney-fees-in-florida/

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