When Can Recovering Attorney’s Fees in Family Law Cases Happen?
Most people are interested in recouping the monies they outlay for their attorney when engaged in family law litigation. Unlike many other instances, the rules governing attorney’s fees in family law cases outline some very specific criteria that the Court must consider when making a determination about whether or not to award attorney’s fees to one side or the other.
Florida Statute §61.16 addresses attorney’s fees, suit money, and costs in the context of family law litigation. Most importantly, this statute gives permission to the Court to, “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.” It is important to note that the Court will be required to “consider the financial resources of both parties.” What this means, in everyday application, is that the Court will be required to find that the party seeking to recover attorney’s fees has a need for the monies and that the other party has the ability to pay said monies.
Although there are instances where attorney’s fees can be awarded as a sanction, or punishment, it is unusual in family law to recover attorney’s fees on that basis alone. Additionally, it is important to note that you cannot recover attorney’s fees, generally, just by being the prevailing party. The Court will almost always need to make the need and ability to pay calculation with the exception of some very limited circumstances.
Unlike almost all other facets of civil litigation, Florida Statute §61.16 does away with the requirement that there be corroborating expert testimony in order to support an award of attorney’s fees in family law litigation. This means that it is unnecessary to hire and introduce the testimony of a fee expert to testify as to the reasonableness of fees. What will be required, typically, is for the attorney whose fees are being sought to tender to the Court an Affidavit of Attorney’s Fees which states how much has been billed by the attorney and for what work, as well as the rate at which the attorney has billed and the qualifications of that attorney which makes them confident that the rate they are billing is in-line with their experience and what other attorneys of similar qualifications are charging in the community.
Although the need and ability to pay calculation is a major component of the Court’s calculation, it is not the only thing the Court will consider. The Court will also take into account additional factors, such as:
- The scope and history of the litigation;
- The duration of the litigation;
- The merits of each parties’ respective positions;
- Whether the litigation is brought or maintained primarily to harass the other party or whether the defense(s) raised are raised mainly to frustrate or stall;
- The existence and course of prior pending litigation; and
- Any factor necessary to provide justice and ensure equity between the parties.
As previously addressed, attorney’s fees will not be awarded as a “reward” to a prevailing party. However, there are additional safeguards built into the statute as well as current case law which will prevent further inequity. Namely, Florida Statute §61.16 forbids the Court from awarding attorney’s fees, suit money, or costs to a party who is found to be willfully non-compliant with a Court order. Further, case law makes clear that where a Court finds that an action is frivolous or spurious or was brought primarily to harass the other party, the Court has the discretion to deny a request for attorney’s fees to the party bringing the suit whether or not they can meet the need and ability to pay calculation.
The recovery/award of attorney’s fees in family law litigation is primarily designed to ensure that the parties remain on a level playing field and can enjoy equal access to comparable legal representation. Bottomline: it is always a good idea to explore the options available to you with regard to recovering attorney’s fees in your family law case.
If you are interested in exploring the viability of an attorney’s fees claim with an 
experienced family law attorney from Crawford, Modica and Holt, we would be pleased to sit down with you and assess the facts of your case in order to advise you about the viability of such a claim.
