Sometimes we hear that the “prevailing party” in a lawsuit is entitled to collect their attorneys’ fees from the other party. This concept generally originates from the terms of the sued-upon contract in civil litigation. But this begs the question – does this “prevailing party” concept apply in dissolution cases and can one spouse be obligated to contribute to the other party’s attorneys’ fees? The “prevailing party” concept has limited application in dissolution proceedings, but it is common for one spouse to be required to contribute to the other party’s attorneys’ fees and costs.
Section 61.16, Florida Statutes (2012) provides that “a court may from time to time, after considering the financial resources of both parties, order a party to pay a reasonable amount for attorneys’ fees, suit money, and the cost to the other party of maintaining or defending” a dissolution proceeding. Courts can award temporary or interim attorneys’ fees (to provide one spouse with funds during the divorce) and/or final attorneys’ fees (usually at the end of the case). The purpose of fee awards in dissolution cases is to ensure that both spouses have similar access to legal counsel and can participate in the case nearly equally.
An award of attorneys’ fees in an action for dissolution of marriage requires a determination of one spouse’s financial need and the other spouse’s ability to pay. Although Florida courts have slightly different interpretations, a fee award is generally appropriate when the requesting spouse cannot afford competent counsel without depleting their portion of the marital assets or using other funds that are necessary for daily living expenses. The analysis is generally more detailed if a final award of attorneys’ fees is requested.
Florida law also provides that the courts may consider any factor necessary to do justice and equity when determining an attorney fee award. Thus, parties should be aware that non-compliance with court orders or bringing unnecessary litigation may limit an attorneys’ fees and costs award in their favor and could result in fees being awarded against them.
Additionally, a spouse may be ordered to pay the other spouse’s attorneys’ fees when the ordered spouse caused unnecessary or “vexatious” litigation. For example, if one spouse unjustifiably refuses to produce documents about their finances, and it requires the other spouse to file motions with the court to require that party to produce these documents and attend hearings regarding the same, the non-producing spouse may be required to pay the costs associated with this unnecessary litigation. They could also be awarded if the Court orders a party to do something and they fail to do so even though they had the ability.
Ultimately, whether one spouse should be ordered to contribute to the other spouse’s attorneys’ fees and costs depends very heavily on the specific facts and circumstances of each case, and should be discussed in detail with an attorney. With that in mind know, fees can be at risk.© Lowndes, Drosdick, Doster, Kantor & Reed, PA, 2013. All rights reserved.