Posted by Nydia Streets of Streets Law in Florida Divorce

If a party to a divorce is being assisted by a relative in paying for living expenses and/or attorney’s fees, does this mean that party would not be entitled to an award of temporary alimony and/or attorney’s fees? This was an issue in the case Zalkin v. Zalkin, 4D2023-2245 (Fla. 4th DCA August 7, 2024).

The wife in this divorce case sought temporary alimony and attorney’s fees. The trial court denied her request for temporary alimony on the basis that there was evidence the wife’s father assisted her by co-signing on a lease, paying her rent and other expenses. The court also found the wife’s claimed expenses were greater than her actual expenses, and that the husband was still paying many expenses on her behalf. The court denied the wife’s request for temporary attorney’s fees on the basis that the wife incurred more fees than necessary by hiring a large firm that billed more for attorney’s fees than the husband’s lawyer billed. The trial court also stated it was hesitant to order prospective fees because it would encourage the parties to litigate rather than settle. The wife appealed.

The alimony decision was affirmed. However, the appellate court reversed on the temporary fee issue, holding “The trial court abused its discretion by denying any temporary award of fees based upon its findings that the wife’s attorney was expensive, and an award of fees would only encourage further litigation rather than mediation. Neither is a proper criteria for a denial of temporary fees. [internal citation omitted]. The court should not force parties into settlement by depriving one spouse of the means to maintain the action. A court’s hesitancy to award prospective fees because doing so may encourage trials could force a lesser-earning spouse into an unfavorable settlement, simply because the spouse could not afford adequate representation to pursue a legitimate claim.”

The court concluded “In this case, there was a ten-to-one income disparity between the husband and the wife, and the husband had already spent $50,000 in attorney’s fees. The wife’s father had paid $25,000 toward her fees, but he had not covered the entire amount billed. Further, no evidence was adduced that the father intended to bankroll the entire proceeding going forward. Even if the wife may not be entitled to all the attorney’s fees which she had requested, the court erred in denying her motion for reasons other than the parties’ relative financial resources. See § 61.16, Fla. Stat (2023) [internal citation omitted],”

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