Question: My spouse and I are divorcing and I have no money. My spouse has hired a lawyer but I do not have money for a retainer. Will I be forced to proceed in our divorce case without an attorney?
Answer: Attorney's fees are not always available, even to the victor in a lawsuit. Award of attorney's fees is generally limited to cases where a statute or contract provides that attorney's fees may be recovered in litigation.
Section 61.16 of Florida Statutes governs awards of attorney's fees. That statute allows judges to award attorney's fees, suit money, and costs in divorce cases, including enforcement and modification proceedings and appeals. The court must consider the financial resources of both parties and, if fees are awarded, the amount awarded must be reasonable.
The statute is intended to place both parties at similar access to legal counsel. Temporary attorney fees can be awarded at the beginning or during the divorce case, if needed to reach the statutory goal. Temporary fees are most often awarded where one spouse is virtually penniless and the other has assets.
The purpose of temporary fees is to insure fairness during litigation. In contrast, fees can be awarded at conclusion of the divorce case where one party has substantially greater ability to pay. On a temporary basis, if both parties have ability to pay, it is unlikely that fees will be awarded. And, in at least one case, the appellate court upheld the trial judge's refusal to award attorney's fees because the requesting spouse did not show that she was unable to retain an attorney.
In the case of Nickles v. Nickles, the wife had no ability to pay substantial attorney's fees but the husband had such ability. The wife requested temporary attorney's fees but her request was denied because she made no showing that she did not have the ability to be represented by counsel.
At conclusion of the case, the court may also award attorney's fees. The court then looks at each spouses need and ability to pay. This requires the court to review both income and asset as they exist after the divorce. In many cases, the position of the party is somewhat equalized by distribution of marital property, along with alimony or child support awards so that the ability to pay attorney's fees at conclusion of the case is close. Attorney's fees are often denied in that situation. In other cases, both spouses are wealthy, although one is wealthier. Fees are usually denied in that case as well.
Attorney's fees cannot be waived by a premarital agreement. They are considered to be part of a spouse's obligation to pay support during marriage. Support during marriage cannot be waived. A different rule applies to divorce settlement agreement. Where attorney's fees are addressed in the agreement, the agreement is binding.
Attorney's fees are not supposed to be imposed as a punitive measure. However, where one spouse is particularly litigious or takes unreasonable positions in the divorce case, fees can be awarded as a sanction. But, the wrongdoing must be something more than the acrimony that accompanies many divorce cases. Refusal to accept a settlement offer, even if the offer is reasonable, will not support an award of fees nor will isolated conduct. Wrongful action must generally be especially heinous and on going in nature.
Divorce cases are emotional and that makes it difficult to make good decisions. An attorney can provide guidance without emotional involvement of a divorcing spouse. An attorney can also explain rights and obligations under Florida law to help reach a fair and equitable settlement or presentation to the judge of the information needed to reach the right conclusion. Since attorney's fees can be awarded at all phases of a divorce case, you should retain an experienced attorney and ask the attorney to seek fees immediately, if that is necessary for representation in the matter. Proceeding without counsel would be a poor choice.