Posted by Nydia Streets of Streets Law in Florida Divorce

When a party requests that the other party pay his or her attorney’s fees and costs in a Florida divorce case, what is considered by the court? If the request is based on a disparity in income levels between the parties, the court will look at the need of the spouse asking for fees to be paid and the ability of the other spouse to pay the fees. It is important to understand what is considered income for purposes of determining need and ability to pay. This was at issue in the case Gonzalez v. Reyes, 2D19-1841 (Fla. 2d DCA August 28, 2020).

After the court entered its final judgment of divorce, the former wife sought a hearing on her request that the former husband pay her attorney’s fees and costs. A hearing was held, and the court determined that while the former wife had a need for attorney’s fees, she had more disposable income than the former husband based on the alimony and child support amounts awarded to her. Therefore, the former wife’s request for fees was denied. She appealed.

The appellate court took issue with the court including child support as income to the former wife. The court held this was improper, stating “[T]he child support payments she received from [former husband] are not income. After all, ‘[c]hild support is a right that belongs to the child.’” (internal citations omitted). On the other hand, the appellate court took no issue with deducting the child support from the former husband’s income in considering his ability to pay since Florida law authorizes the court to consider it when calculating ability to pay attorney’s fees. The appellate court also found errors in the trial court double-counting alimony for both parties in determining their financial standings. Therefore, the order was reversed with instructions for the court to re-calculate each party’s income and therefore the former husband’s ability to pay fees.

Schedule a consultation with a Miami divorce lawyer to understand how the law may be applied to your case.