This Florida Divorce Attorney Fee Laws Overview explains what you need to know about how the attorney fee sharing laws might apply in your Florida Divorce.
In the United States, one of the underpinnings of the legal system is that in most forms of litigation, each person is responsible for paying their own attorney unless a judge determines the lawsuit was frivolous.
This concept gave rise to “contingency fee lawyers.” These lawyers are only paid a percentage of the money they recover for their client, which in effect allows these lawyers (some of which are extraordinary) to represent people who would otherwise lack the financial means to pay a lawyer.
Unfortunately, when it comes to divorce, Florida Divorce Attorney Fee Laws prohibit lawyers from working on a contingent fee basis, which results in the issue of each spouse needing to have the ability to pay the lawyer representing them in their divorce.
At first blush, this is a problem for spouses who do not control enough of the marital financial resources to pay a competent divorce lawyer.
Florida divorce attorney fee laws address this issue by having attorney’s fee and litigation cost sharing provisions. These laws are, in theory, developed and implemented to allow both spouses to be on equal legal footing in their divorce.
The thought is that the government has an interest in making sure people are treated fairly in their divorce, because if one spouse is railroaded and becomes financially destitute, they could become a welfare recipient that eats up tax dollars which could be better spent elsewhere. Most state governments determined that having laws designed to encourage equal access to attorneys in a divorce, helps make it less likely that people will be taken advantage of in divorce negotiations.
Generally speaking, Florida divorce attorney fee laws operate to require a spouse with an obviously “superior” financial position after the divorce, to be responsible for all or a portion of their spouse’s “reasonable” attorney’s fees and costs. If both people leave the marriage with comparable net assets and income, they will likely be required to pay for their own lawyer.
These Florida divorce attorney fee laws only apply if one spouse has a clearly “superior” financial position, which is usually interpreted to mean that (1) they leave the marriage with a substantially higher net worth or (2) they have the ability to pay their spouse’s legal fees out of their net income after the divorce after taking into account any alimony or child support obligations and being able to pay their own reasonable living expenses.
There are exceptions to these aspects of the Florida divorce attorney fee laws that limit the responsibility for paying legal fees when the spouse with “less money” leaves the marriage with still significant assets or engages in unnecessary litigation.
A notable issue when it comes to legal fees is a judge can order them to be paid “temporarily” by one spouse early on, with a final adjustment at the end of the divorce to create any inequalities. Spouses who do not have any meaningful access to cash or credit can seek to have their attorney paid through a “temporary” attorney fee request, which can be set by a judge but is sometimes negotiated between the lawyers so that spouses do not end up paying their divorce lawyers to fight in court about how much money is paid to divorce lawyers.
Although the theory behind the Florida divorce attorney fee laws seems admirable, the fact that one spouse can be responsible for all or a part of their (angry) spouse’s legal expenses, can enable protracted divorce litigation in a situation when one person is likely to end up paying another person’s legal fees. This is especially true when the angry spouse is not a sophisticated consumer of legal services and/or they blindly trust their lawyer due to a lack of trust in the relationship.
This is why the strategy discussed in Step #9: Resolution Focused Litigation is so important. You need to have a Best Divorce Strategy aimed at resolving your divorce through negotiation or judicial intervention as soon as possible. The longer the divorce drags on, the more time your spouse’s attorney has to generate the legal fees you could end up paying them.
The analysis of whether someone has to pay their spouse’s lawyer under Florida divorce attorney fee laws is fact intensive, and will vary between judges and jurisdictions. Your divorce lawyer will be able to give you a better feel for how your judge will address the issue. However, for illustration purposes, I have included several examples below modeled after how Florida divorce attorney fee laws work.
Scenario #1: Jack and Jill get divorced after 30 years of marriage and four children. Jack runs a small, but successful contracting business while Jill has primarily been a stay-at-home housewife once their children were born. In the divorce, both Jack and Jill leave the marriage with $350,000 in net marital assets, and Jack pays child support and alimony that allows Jill to meet her financial needs, but nothing more. Jack, after paying alimony, child support, and his own modest living expenses, has almost zero cash flow left over at the end of the month. In this situation, it is likely that both Jack and Jill are going to have to pay their own legal fees in the divorce. This is because, when all is said and done, Jack and Jill have the same amount of assets and neither has significant cash flow after paying for their basic living expenses.
Scenario #2: Assume the same facts in scenario #1 above, except Jack is an investment banker and has an additional $500,000 net cash flow each year, after paying alimony and child support to Jill. In this situation, although Jack and Jill are leaving the marriage with equal assets, Jack will likely pay most of Jill’s legal fees and costs, since he can do so out of his net income. The same result would likely apply if Jack had no significant net cash flow after paying support expenses and his own living expenses as in scenario #1, but left the marriage with non-marital assets that he could utilize to pay Jill’s lawyer.
Scenario #3: Assume the same facts as scenario #1, except that Jack and Jill both leave the marriage with net assets equal to $5 million. In this scenario, Jack and Jill would likely be required to pay for their own divorce lawyer. If the facts changed to where Jack left the marriage with $10 million and Jill receives $5 million, only one-half of Jack’s net worth, the result would likely still be that each spouse would pay their own lawyer, as the fee and cost sharing laws are usually not going to apply when once each spouse has significant assets.
Scenario #4: Assume that Jack was a womanizer and Jill got fed up with Jack’s philandering ways during their engagement and called off the wedding. Fast forward to 30 years later. Jack has been the serial bachelor, having never married, but having long enjoyed the affluent lifestyle created by his software business. However, at age 55 he is finally ready to settle down with the much younger, but seemingly sophisticated Jane. Jack and Jane tie the knot, but after the new couple returns from the wedding in Tahiti that Jack paid for (along with the airfare and accommodations for 75 of Jane’s closest friends and family members) things start to go down-hill quickly. After less than one year of marriage, Jane files for divorce, at a time when Jack has liquid assets of $25 million, all of which are non-marital and will be kept by Jack in the divorce. Jane needs help paying her lawyer, because the only thing she has to her name is student loan debt from the college degree she stopped pursuing once she met Jack.
In this situation, Jack will likely pay for Jane’s lawyer since he has significantly more money. However, if it is proven that Jane is engaging in frivolous divorce litigation as a means to extort money from Jack which she would never receive under the applicable law, the judge in her case will be more likely to make her pay her own lawyer, or at least limit Jack’s legal fee and cost sharing exposure to what normal legal fees should have been, had Jane acted in good faith during the divorce.