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12/13/12 It's The Law: Attorney's Fees In A Divorce - Not Automatic

It's The Law

Attorney's Fees in a Divorce – Not Automatic



Does the court always award attorney's fees to one party in a divorce case?


Section 61.16 of Florida Statutes addresses attorney's fees, suit monies and costs in divorce cases. The statute provides that the Court may award a reasonable amount of attorney's fees, suit monies and costs after considering the financial resources of both parties. The decision as to fees in a divorce case is generally made after distribution of assets, as the Court will consider financial position a party will hold after divorce as impacting ability to pay and need for fees.

Despite the statute, it is possible to limit or eliminate an award of fees through contract. This is often a provision in a prenuptial agreement. However, Florida courts have generally held that a provision waiving attorney's fees in connection with dissolution of marriage in a prenuptial or post-nuptial agreement as unenforceable. Attorney's fees during marriage are considered to be an element of support and the obligation to support a spouse during marriage cannot be waived.

In contrast, Florida's Supreme Court has ruled that a prenuptial agreement may provide for prevailing party attorney's fees in actions seeking to enforce the agreement. In a split decision, the Court explained that action to enforce a prenuptial agreement should be viewed the same as enforcement of any other contract. Provisions of the agreement will control, provided the agreement is enforced.

The Court went on to explain that a prevailing party clause in a prenuptial agreement is distinguished from waiver of support. Provisions waiving temporary alimony or attorney's fees in divorce cases are included to enrich the parties entering the agreement. In contrast, a prevailing party clause protects the agreement itself and its purpose is to indemnify the party relying on the agreement and serve as a disincentive to one who may frivolously challenge it. The Court further explained that a prevailing party clause in a prenuptial agreement does not implicate the State's interest in insuring each spouse supports the other during marriage.

Florida courts will also generally enforce attorney fee provisions or waivers in marital settlement agreements. Absent a controlling settlement provision, attorney's fees may be available under the statute in actions to enforce or modify a divorce judgment. But, terms of the agreement will be strictly enforced.

In one case, the parties settled their divorce through agreement that required a defaulting party to pay the other party's attorney's fees in actions to enforce the agreement. After divorce, the former husband defaulted and the former wife successfully pursued enforcement in court. The trial court refused to award fees, even though the former wife won her case to enforce the agreement, on basis that both parties could afford their own attorneys. The appellate court reversed and explained that the contractual provision was controlling and the court had no discretion to refuse an award of attorney's fees by turning to the statute.

In the Zakian case, the 4th District was asked to interpret an agreement. The agreement provided that if either party failed to abide by terms of the agreement, the other party would be indemnified for all reasonable expenses and costs including attorney's fees incurred in enforcement of the agreement. The husband thought he was being overcharged and withheld payment of certain obligations under the agreement. The wife went to court and during the proceeding the husband sent her a check for payment in full. The Court ruled that the wife did not have to prevail through final court action to qualify for attorney's fees under the settlement agreement, because the agreement did not limit award of fees to a prevailing party. Since the wife was the non-defaulting party, she was entitled to fees incurred to enforce the agreement.

In the Miller case, the appellate court was presented with yet a different set of facts. In Miller, the settlement agreement provided that the prevailing party in a subsequent action to enforce the agreement would be entitled to attorney's fees. The former wife filed a petition to modify parental responsibility and visitation and the husband filed a counter-petition to modify. The husband was partially successful and was awarded fees as the prevailing party. The former wife appealed.

The appellate court reversed. It ruled that the former husband's action was not enforcement of the agreement but effort to modify. The attorney's fee provision in the agreement only provided for an award of fees to the prevailing party in any enforcement provision and, as such, an award of fees was not authorized.

The issue of attorney's fees in divorce proceedings can be complex. It turns on the entire financial picture as well as actions of the parties. It can be impacted by settlement agreement and ultimate decision by the court will be a product of all of these factors. In this area, good legal advice is important.

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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