Posted by Nydia Streets of Streets Law in Florida Family Law Procedure
When attorney’s fees are requested in a Florida family law case under Florida Statute 61.16, the primary consideration is need and ability to pay. According to that statute “The court may from time to time, after considering the financial resources of both parties, 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 enforcement and modification proceedings and appeals.” This was an issue in the case Ali v. Khan, 6D23-1199 (Fla. 6th DCA September 1, 2023).
In this post-divorce case, the former husband was ordered to pay the attorney’s fees and costs of the former wife for having to defend against the former husband’s petitions for modification of support and of the parenting plan. The appellate opinion notes “The trial court made several findings to support its criticism of Ali’s conduct throughout the litigation process. The trial court also concluded that, under the circumstances, it would be unjust to require Khan to have to pay any of her attorney’s fees and ordered Ali to pay all of Khan’s attorney’s fees. However, the court did not assess the fees as a sanction.”
The appellate court concluded “Here, it was within the trial court’s prerogative to consider the conduct of the parties and the progress of the litigation. However, the trial court should have also considered the parties’ financial positions, focusing on Khan’s need for an award of fees and Ali’s ability to pay. Because the trial court did not do so, we must reverse the order granting fees to Khan and remand for the trial court to reevaluate Khan’s fees request.”
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