Attorneys’ Fees and Costs: Who Will Pay?

Because the language of the statute is permissive, the question of whether one spouse will have to pay the attorney fees and costs for another spouse, or the question of whether the spouse with little to no money will be awarded the attorney fees and costs to litigate on the same footing as the other spouse, causes great concern at the commencement of the divorce process.  Your attorney may also suggest that your case requires other professionals such as a forensic accountant, psychologist, vocational expert, appraisers or other professionals.  These professionals need to be paid.  You may be wondering, “How do we pay for this?”

Need and Ability to Pay

Florida Statutes state that “from time to time, courts may order a party to pay a reasonable amount of attorney’s fees, suit money and costs to the other party after considering the financial resources of both parties.”  What Florida law makers meant when they said, “after considering the financial resources of both parties” is whether one spouse has a need for attorney’s fees, suit money or costs and whether the other spouse has an ability to pay.  The test is not either/or, it is inclusive – there must be a need and there must be an ability to pay. If there is no need, then there will be no order to pay attorney’s fees.  If there is a need but no ability to pay, then there will be no order to pay attorney’s fees.

How is need or ability to pay determined?  

During your divorce process, you and your spouse will both fill out and sign financial affidavits.  This financial affidavit details your income and expenses on a monthly basis, and all of your assets and liabilities.

The financial affidavits filled out by you and your spouse are the first and most important step in determining whether one of you has a need for fees and the other has the ability to pay for fees.  When there is an obvious need and an obvious ability to pay, the attorneys usually come to an agreement regarding payment of temporary attorney’s fees, suit money and costs.  You and your spouse can designate an asset from which all fees, suit money and costs are paid from, or agree to an award of temporary fees and costs while waiting to attend a hearing or mediation.

If you and your spouse have savings or investment accounts, you both may agree to use those accounts from which to pay the attorneys’ fees and other costs to both lawyers.

What will the court consider before awarding attorney’s fees, suit money and costs?

The Court will first consider the information contained in the financial affidavits.  In addition, the Court will consider any non-marital assets owned by each spouse.  For example, if you or your spouse have bank accounts or investment accounts that were acquired prior to your marriage, those accounts can be tapped to pay attorney’s fees, suit money and costs.  That means if you are the spouse who does not have enough income to pay attorney’s fees, and you have a nonmarital account with money, you may be required to pay your attorney’s fees out of your own nonmarital funds.  If you are the spouse who is being asked to pay attorney’s fees and costs, and you have a nonmarital account with money, you may be required to pay your spouse’s attorney’s fees and costs out of that money.

Florida is concerned with making sure both spouses have access to attorneys during their divorce matter.  It would be patently unfair and against the public policy of Florida if the spouse with access to money was the only spouse who could afford to be represented by an attorney.

You and your spouse should have a conversation prior to hiring attorneys regarding what you are willing to pay those attorneys.  Often times, fees can become exorbitant when you and your spouse begin fighting over unnecessary issues or personal property.  When you and your spouse are not angry, and looking out for your own best interests, agree how you intend to control the costs and stick to that agreement.

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