Posted by Nydia Streets of Streets Law in Florida Divorce

Florida family law allows for the payment of attorneys’ fees and costs based on need and ability to pay. So even the “winner” of a family law case may be required to pay the other party’s attorneys’ fees and costs based on principles of equity. The playing field is leveled in this way so that one party does not have the ability to hire a lawyer while the other must proceed without counsel. However, before attorneys’ fees and costs are ordered to be paid, there must be findings as to a party’s need for them and the other party’s ability to pay them.

In the case Troike v. Troike, 3D18-1187 (Fla. 3d DCA 2019), the husband was ordered to pay alimony and child support which amounted to about 40% of his income. In addition to this, he was ordered to be 100% responsible for guardian ad litem fees, psychologist fees and fees for supervised timesharing. The husband testified that he borrowed money to pay these fees from his parents and that he owed them about $40,000.00. The court also ordered that the husband pay the wife’s attorneys’ fees and costs.

On appeal, the trial court was found to have abused its discretion in awarding the fees without a finding that the husband could pay them. The appellate court held, “While the record reflects that Appellant has the ability to pay the temporary, monthly obligation of $3351, the record does not contain competent substantial evidence that Appellant has the ability to pay this additional $28,275.28 obligation. [. . .] Specifically, section 61.16(1) of the Florida Statutes requires that the trial court take into consideration the parties' financial ability to pay when imposing attorney's fees and costs. While Appellee's need is present in the record, Appellant's ability to pay is not thoroughly established. We therefore reverse that portion of the May 31, 2018 temporary support order requiring Appellant to pay the $28,275.28, and remand for proceedings consistent with this opinion. On remand, the trial court should consider the cumulative effect on Appellant's financial ability of the $28,725.28, together with the Guardian ad Litem fees and costs and the cost of supervised timesharing, both of which were imposed piecemeal on Appellant in separate orders.”

Avoid getting stuck having to pay fees, costs and support you may not be able to afford. Consult with a Miami divorce attorney to understand the full picture in your case.