You are going to have to pay your divorce lawyer something for them to start working on your Florida divorce. If you do not have sufficient money to pay your attorney beyond your initial retainer (and you cannot or will not settle) you can ask a Florida divorce court to have your spouse pay your divorce lawyer’s additional attorney’s fees while your divorce is still proceeding.
“The court may from time to time, after considering the financial resources of both parties, order a party to pay a reasonable amount for attorney’s fees, suit money, and the cost to the other party of maintaining or defending any proceeding under this chapter, including enforcement and modification proceedings and appeals.” Fla. Stat. § 61.16(a)
Temporary attorney’s fees are no different than requesting final attorney’s fees. Temporary attorney’s fees are just requested at a different time per the statute’s instructions that the court may order attorney’s fees from “time to time.”
“The appropriate inquiry — whether one spouse has a need for suit money and the other has the ability to pay — is the same whether the fees requested are temporary or final.” Robbie v. Robbie, 591 So.2d 1006, 1009 (Fla. 4th DCA 1991)
Attorney’s fees are awarded in a Florida divorce based on the test of whether one party needs the money for fees and the other party has the ability to pay those needed attorney’s fees.
“The primary considerations for an award of attorney’s fees under section 61.16, Florida Statutes, are the party’s need and the other party’s ability to pay.” De La Piedra v. De La Piedra, 243 So. 3d 1052 – Fla: Dist. Court of Appeals, 1st Dist. 2018
The formula for temporary attorney fees is not so simple as the needs vs. ability to pay test that determines whether temporary alimony is awarded.
“[S]ection 61.16(1), Florida Statutes (2021), requires a court to consider the financial resources of both parties when ordering [attorney’s] fees.” Hasson v. Hasson, 339 So. 3d 1006 – Fla: Dist. Court of Appeals, 4th Dist. 2022
“Under the statute, the primary factor to be considered in determining whether to award attorney’s fees and costs to one party is the relative financial resources of the parties.” DiNardo v. DiNardo, 82 So. 3d 1102 – Fla: Dist. Court of Appeals, 2nd Dist. 2012
“[T]he resources of the parties should not be the only consideration when evaluating whether to grant attorney’s fees.” Hoff v. Hoff, 100 So. 3d 1164 – Fla: Dist. Court of Appeals, 4th Dist. 2012
When determining the “financial resources of the parties” a Florida divorce court must determine the parties’ income as well as their assets. “The extent of the parties’ incomes from all sources and the reasonable income-earning abilities of the parties are essential parts of the equation… in determining the parties’ comparable financial circumstances, to justify or deny an attorney’s fee and costs to the spouse with less resources.” Brock v. Brock, 690 So.2d 737, 742 (Fla. 5th DCA 1997)
A Florida divorce court can also determine whether the attorney’s fees will be put towards a justifiable purpose…not just to exacerbate more litigation.
“Section 61.16 constitutes a broad grant of discretion, the operative phrase being “from time to time.” The provision simply says that a trial court may from time to time, i.e., depending on the circumstances surrounding each particular case, award a reasonable attorney’s fee after considering the financial resources of both parties. Under this scheme, the financial resources of the parties are the primary factor to be considered. However, other relevant circumstances to be considered include factors such as the scope and history of the litigation; the duration of the litigation; the merits of the respective positions; whether the litigation is brought or maintained primarily to harass (or whether a defense is raised mainly to frustrate or stall); and the existence and course of prior or pending litigation.” Rosen v. Rosen, 696 So.2d 697 (Fla. 1997)
The attorney’s fees must not only be for a reasonable purpose, the attorney’s fees must be reasonable in amount.
“The trial court must `not only determine that one spouse has a need for suit money and the other has the ability to pay, but also that the temporary attorney’s fees and costs awarded are reasonable.'” Safford v. Safford, 656 So.2d 485, 486 (Fla. 2d DCA 1994) (quotations and citations omitted)
“[I]n awarding attorney’s fees, lower courts must make specific findings as to the hourly rate and number of hours expended.” Erskine v. Erskine, 262 So. 3d 223 – Fla: Dist. Court of Appeals, 1st Dist. 2018
The income, assets, resources of the parties, and the attorney’s fees must all be proven via testimony and exhibits in order to get an order for temporary attorney’s fees.
“The award [of temporary attorney’s fees] must be supported by competent, substantial evidence.” Hasson v. Hasson, 339 So. 3d 1006 – Fla: Dist. Court of Appeals, 4th Dist. 2022
Temporary attorney’s fees do not exist in a vacuum. Most spouses who ask for temporary attorney’s fees also ask for alimony and/or child support simultaneously. In fact, the statute for temporary alimony allows the spouse to ask for attorney’s fees (“suit money”) at the same time.
“In every proceeding for dissolution of the marriage, a party may claim alimony and suit money in the petition or by motion, and if the petition is well founded, the court shall allow a reasonable sum therefor. If a party in any proceeding for dissolution of marriage claims alimony or suit money in his or her answer or by motion, and the answer or motion is well founded, the court shall allow a reasonable sum therefor.” Fla. Stat. § 61.071
An award of alimony, if significant, usually makes the spouse asking for attorney’s fees…now capable of paying their own attorney’s fees.
A spouse’s “ability to pay [their] temporary attorney’s fees [is impacted by] any retroactive [lump sum] support award” Hoffman v. Hoffman, 127 So. 3d 863 – Fla: Dist. Court of Appeals, 2nd Dist. 2013
When “the trial court has equalized incomes through its alimony award, the trial court abuses its discretion in awarding attorney’s fees.” Galligar v. Galligar, 77 So.3d 808, 813 (Fla. 1st DCA 2011)
Furthermore, courts want the parties to be paying their own attorneys from their own funds (or funds awarded directly to them) in order to not provoke unnecessary litigation.
“If a person is required to bear at least a portion of his or her attorney’s fees, that person is more likely to be a responsible, conservative consumer of legal services.” Von Baillou v. Von Baillou, 959 So. 2d 821 – Fla: Dist. Court of Appeals, 4th Dist. 2007
At the end of the final hearing (the trial), a Florida divorce court can again assess the final financial resources of the parties after alimony, child support and assets have divided.
“The trial court should determine the relative financial positions of the parties as of the time of the entry of the final judgment dissolving the marriage.” DiNardo v. DiNardo, 82 So. 3d 1102 – Fla: Dist. Court of Appeals, 2nd Dist. 2012
This is cold comfort to the divorce client who needed his or her lawyer’s trial retainer paid before they would appear at the final hearing.
Asking for your spouse to pay your attorney’s fees during a divorce is like asking your opponent to give you a bigger gun before a duel. Your spouse is not going to want to give you the resources you need to challenge them in a Florida divorce court. You are going to have to request that the Florida divorce court force them to pay your attorney’s fees before the case is over.
An order for temporary attorneys’ fees will give you the leverage you need to encourage settlement or the resources you need to conduct a fair divorce trial.
If you need or know you will need a temporary attorney’s fee order, contact my Naples, Florida family law firm to speak with an experienced Florida divorce attorney.