Posted by Nydia Streets of Streets Law in Florida Family Law Procedure
Attorney’s fees can be awarded in a Florida family law case based on financial disparities between the parties. If one party earns a lot more money than the other party, and has the ability to also pay fees for the other party, and the other party has a need for fees to be paid, the higher-earning party may be ordered to pay attorney’s fees. Florida Statute 61.16 allows the court to make this determination. This was an issue in the case Ospina-Shone v. Shone, 3D23-0917 (Fla. 3d DCA November 6, 2024).
After the parties were granted a divorce, the former husband filed a motion under Fla. Stat. 61.16 for attorney’s fees and costs alleging the former wife vexatiously litigated the case. He specifically alleged that the former wife rejected three settlement offers which were more generous that what she was ultimately awarded at trial, and that the only reason she rejected these offers was to force the former husband to spend attorney’s fees at trial. He cited the fact that the former wife went into trial seeking certain relief but then conceded on those claims at trial. There was no testimony about either party’s financial ability or need for attorney’s fees. The trial court agreed with the former husband and awarded fees to him. The former wife appealed.
The appellate court reviewed the case under an abuse of discretion standard. It noted first “During a divorce proceeding, ‘[t]he [trial] 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 . . . .’ § 61.16(1), Fla. Stat. (2024). ’[C]ircumstances to be considered include factors such as the scope and history of the litigation; the duration of the litigation; the merits of the respective positions; whether the litigation is brought or maintained primarily to harass (or whether a defense is raised mainly to frustrate or stall); and the existence and course of prior or pending litigation.’ Rosen v. Rosen, 696 So.2d 697, 700 (Fla. 1997). But ‘[t]he parties’ financial resources are the primary factor that the trial court must consider.’ Allen v. Juul, 278 So. 3d 783, 784 (Fla. 2d DCA 2019).”
The court concluded “Therefore, when deciding a § 61.16(1) fee motion, there must be evidence that the moving party needs his attorney’s fees to be paid, and that the nonmoving party can pay those fees.” Since there was no evidence reviewed by the trial court about these factors in reaching its decision, the appellate court reversed the order. Schedule your meeting with a Miami family law attorney to understand how the law may apply to your case.