Can My Spouse Be Responsible for My Legal Fees in a Florida Divorce?

Written by: Lenorae Atter, Attorney at Law

In a Florida divorce, there are often concerns posed by potential divorcees about legal fees. Hiring an attorney can be beneficial to the preservation of your rights as they relate to alimony, child support, child custody (time-sharing issues), division of property and the like. However, attorney fees are also an expense that can sometimes be afforded by one party more than the other. The question then arises as to, “How can I hire a divorce lawyer if my spouse is the one working?” There are multiple answers to this question, which can be answered by your Jacksonville divorce lawyer, but a common answer is that the spouse making the majority of the money may be responsible for the other party’s attorney fees so that the discrepancy in income does not lead to unfair advantage in the courtroom.

However, disparity in incomes is not the only way that attorney fees and costs related to your divorce may be paid by the other party. Typically, when you first hire an attorney you are quoted a retainer based on the issues surrounding your case, the experience of the attorney, and the hourly rate charged by the attorney. However, if the other party forces excessive litigation against the other party, then there is the possibility of being awarded attorney fees for the unnecessary litigation actions of that party. For example, if you hire an attorney to represent you in a divorce with no children, no marital home, some assets (vehicles, furniture, etc.), and some debt (one or two credit cards), then the divorce should not be overly complicated because there is not a lot to fight over in the world of equitable distribution. However, if your spouse tries to argue over everything, a fork, a spoon, a knife and a light bulb and in the process creates additional and excessive legal fees. The courts have held that the party responsible for creating, “vexatious and frivolous litigation,” can be held responsible for the fees incurred as a result, Taylor v. Taylor, 734 So.2d 473 (Fla. 4th DCA 1999).

Also, in Rosen v. Rosen, 696 So. 2d 697, 700-01 (Fla. 1997), the Florida Supreme Court addressed the issue of attorney fees which, “has been interpreted as authorizing an award of attorney’s fees against a spouse for ‘over litigation.” The idea is that if a spouse is pursuing topics or arguments in the litigation which have no true basis have no prospect of winning, then that spouse can be held liable for the attorney’s fees associated with pursuing the action. For example, if the spouse is trying to get an award of the other spouse’s future inheritance, then there is no chance that the litigation will be prosperous for that spouse and the fees associated with pursuing the losing action can be held against the pursuing spouse.

The concept behind these court rulings regarding attorney’s fees and costs is to reduce the amount of unnecessary litigation in a divorce. The courts would rather the parties focus on the issues that are at hand via Florida statute versus trying to solve their own personal issues within the litigation and ultimately pushing one or both spouses into further debt.