Can You Make Your Spouse Pay Your Legal Fees?

One of the most common questions clients ask in a divorce and other family law matters is whether they can make their spouse pay for their attorney’s fees.  Like most things in the law, the answer is unsurprisingly nuanced and complicated.  It is an important question because legal fees is one of the biggest concerns people looking into divorce can face.  Let’s face it—divorces can be expensive and not everyone has access to the same resources.  Florida law provides some options to try to level the playing field when it comes to attorney’s fees in a divorce.

Section 61.16

Section 61.16 of the Florida Statutes provides the primary basis for obtaining attorney’s fees from your spouse or the other party.  It broadly authorizes the court to “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 modification and enforcement proceedings and appeals.”  As the language indicates, these fees are available not just for an original divorce action but also for enforcement actions, modification actions, and appeals of the divorce.  The statute vaguely instructs the court to “consider[] the financial resources of both parties” in making this decision.  In the seminal decision Canakaris v. Canakaris, 382 So. 2d 1197, 1205 (Fla. 1980), the Florida Supreme Court held that the purpose of section 61.16 is to “ensure that both parties will have similar ability to secure competent legal counsel.”

Importantly, section 61.16 specifically notes that a party who is found to be a wrongdoer in the context of a domestic violence proceeding or enforcement actions is not entitled to receive attorney’s fees, regardless of the parties’ respective financial positioning (in other words, the person who is not paying child support and found to be a wrongdoer cannot receive attorney’s fees under this section even if they make significantly less income than the other person).

Section 61.16 is not intended to necessarily cover all of one party’s attorney’s fees for an entire divorce, or other family law matter.  Instead, a party can be provided with a limited amount of attorney’s fees at one point in the process and then the court can re-assess if more fees are necessary later on, depending on how the matter unfolds.

Section 742.045

Section 742.045 of the Florida Statutes mirrors the language of 61.16 and applies it to paternity actions.

Section 57.105

Florida law also provides attorney’s fees upon a finding that the losing party took a position that was not supported by the material facts necessary to establish the claim or defense or would not be supported by then-existing law to those material facts.  What this means is that if someone takes a position or makes a claim that is without factual or legal merit, then attorney’s fees are available.  It must be noted that this is a rather extreme provision that is rarely applicable in the family law context.  It is not enough to disagree with the other side or to interpret a case or statute differently (most litigated cases have at least some of this).

Before one can file a motion for attorney’s fees pursuant to this law, section 57.105, a copy of the motion to be filed must be served on the other side at least 21 days before the motion can actually be filed with the court.  The intention behind this is to provide the other side a period of time to rectify the claim that allegedly falls under section 57.105 (the outlandish claim that is without legal or factual merit).  This is referred to as the “safe-harbor” requirement.

Moakley v. Smallwood

Despite there being no statute authorizing it, the Florida Supreme Court has recognized the courts’ inherent authority to sanction attorneys for attorney misconduct.  An award of attorney’s fees under this provision is not based on a finding that the parties have disparate financial positions or need and ability to pay attorney’s fees.  A motion for attorney’s fees based on this inherent authority to sanction attorney misconduct requires notice, an evidentiary hearing, and detailed factual findings by the court.  Further, the award of attorney’s fees is limited to that which was incurred to respond to and deal with the specific misconduct, not just general attorney’s fees.

When to Request Attorney’s Fees

You can request attorney’s fees at various times in litigation, largely depending on the basis for the request in attorney’s fees.  Fees under 57.105 and Moakley v. Smallwood are a reaction to specific legal tactics and misconduct so they cannot be requested until that behavior has already occurred.  A request under 61.16 can be more proactive, toward the start of litigation if the financial resources are so imbalanced that one party can barely afford an initial retainer to get started, but the request can also be resolved after a full trial, when all of the ultimate evidence has been presented.

If you have questions about whether you may be entitled to attorney’s fees in your family law matter, please schedule a consultation with us today.