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05/10/12 It's The Law: Attorneys' Fees Can Be Awarded in Divorce

It's the Law

Attorneys' Fees Can Be Awarded In Divorce

(05/1012)

Question:

I am going through a contentious divorce. My spouse fights about everything and even makes up things to fight about. It is costing a lot in attorneys' fees. Will I be able to recover attorneys' fees from my spouse as part of this case?

Answer:

Some people believe that attorneys' fees are always awarded to the winner in any lawsuit. That is not true. Even if it was true, how could you determine a "winner" in a divorce case?

Generally, attorneys' fees can only be awarded if authorized by statute, court rule or contract. There are a few isolated actions that include attorneys' fees from common law, but divorce is not one of them. Attorneys' fees may be awarded in a divorce action because Section 61.16 Fla. Stat. authorizes an award of attorney fees, suit money and costs in these cases.

The statute provides that the court may award attorneys' fees during the pendency of a divorce case (so that one party can retain an attorney) and at end of the case. It can make multiple awards during a case.

Either or both spouses may request attorneys' fees. In determining whether to make an award, the court primarily looks to the relative financial positions of the parties. However, the spouse asking for fees must show some need for the fees. It is not enough to merely establish one party has greater ability to pay than the other.

The court may consider a variety of factors. Who gets what assets is a factor. Alimony and child support can also impact this decision. The court is supposed to look at the effect of all awards and distributions as part of deciding whether fees should be awarded and then the amount of any award. The court can also order fees be paid directly to an attorney so that the attorney can enforce the award in the attorney's own name. The court cannot order a client to pay his or her own attorney fees in the divorce setting.

Attorneys' fees generally cannot be awarded to punish a spouse or as a penalty for wrongful conduct. However, litigation misconduct can be considered. As stated by one court, a "party's financial status should not insulate them from the consequences of their conduct within the judicial system."

Where one party in a divorce case engages in an action primarily to harass or frustrate, the court can deny a request for fees by the party engaged in such wrongful litigation.

The court can also deny fees where litigation is continued beyond a point that makes good sense. In the recent case of Hallac v. Hallac, the parties engaged in protracted settlement negotiations. The husband's final offer would have given the wife $239,000 in assets, between $200,000 - $312,000 in alimony, and $20,000 in attorneys' fees. The wife rejected the offer and proceeded to trial.

At trial, the wife was awarded $8,000 in alimony and net assets of $178,369. The wife's request for attorneys' fees was only partially granted by the court. It was determined her rejection of the husband's settlement offer was unreasonable and that she had no rational reason to continue with litigation after the offer. Her request for attorneys' fees for time spent after the husband's last offer was denied.

There are a lot of factors considered by judges deciding attorney fee issues in divorce cases. The statute and cases confirm that judges have broad discretion in this area. Since the facts of each case will impact the attorney fee issue, even the most experienced attorneys cannot predict with certainty a judge's decision. The attorney fee issue is but one example of the complexity present in many divorce cases and it emphasizes the need for good legal advice.

By: William G. Morris, Esquire

William G. Morris is an attorney with offices at 247 North Collier Boulevard on Marco Island, Florida. His practice covers a broad range of subjects, including civil litigation, real estate, business and corporate law, estate planning and probate, domestic relations and contracts. He writes this column periodically with respect to legal matters that frequently affect non-lawyers. The information contained in this column is not intended as legal advice and, of necessity, is generalized. For questions about specific circumstances, the reader should consult a qualified attorney.

Questions for this column can be sent to: William G. Morris, e-mail: wgmorrislaw@embarqmail.com or by fax, (239) 642-0722 or

The Marco Island Eagle

Other articles of interest can be viewed at our website, www.wgmorris.com.

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