Posted by Nydia Streets of Streets Law in Florida Divorce

If a party earns less money than the other spouse in a Florida divorce, the lesser earning spouse may be entitled to have his or her attorney’s fees paid by the higher earning spouse. However, if the spouse asking for his or her attorney’s fees to be paid commits misconduct during the case, this may affect his or her ability to have those fees paid. This was an issue in the case Root v. Feinstein, 4D19-0701 (Fla. 4th DCA August 26, 2020).

In their Florida divorce case, the former wife filed a motion for temporary attorney’s fees and costs. This is a motion filed during the course of the case to support ongoing litigation. Separately, the former wife was found to have illegally accessed the private emails of the former husband. As a sanction, the trial court denied the former wife’s motion for temporary fees. The former wife appealed on the basis that it was error to deny her total request for fees rather than to determine how much in fees her conduct caused, and then subtract that amount from the total amount of temporary fees that would have been awarded to her, assuming she could show a need for fees and the former husband’s ability to pay them.

The appellate court agreed with the former wife, holding it was error for the trial court to enter a blanket denial of her request for temporary fees. The appellate court held “[The] trial court erred in failing to make express findings setting forth the amount of reasonable fees and costs resulting from her misconduct that the trial court found not to be awardable for her modification proceeding. Accordingly, the denial of the motion for temporary attorney’s fees and costs as it stands is reversed and remanded for the trial court to apportion and make express findings as to the reasonable amount of fees and costs pursuant to Rosen v. Rosen, 696 So. 2d 697 (Fla. 1997), that should be awarded or denied for her modification proceeding.

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