Put it on Their Tab: Awards of Attorneys’ Fees and Costs in a Florida Family Law Case
One big question clients ask, when faced with a family law issue; when can the court award fees and costs in a Florida family law case?
There are several situations where a court may award fees and costs to a party, the first is needs-based and the decision is based on a party’s demonstrated need for their fees and costs to be borne by the other party and the other party’s ability to pay those fees and costs. The reasoning here is that both parties should have equal access to legal representation and a party should not be at a disadvantage due to limited financial resources. Needs-based attorney’s fees may be awarded in cases where one spouse is the primary breadwinner. This type of award can also be granted on a temporary basis. With needs-based attorneys’ fees the courts will consider both party’s income, assets, debts and individual financial obligations.
The second situation where a court can award attorneys’ fees and costs to a party is in contempt and enforcement actions. This is where one party needs to litigate because the other party has failed to comply with a court order, such as non-payment of child support, non-payment of alimony, or not following the court-ordered time-sharing schedule).
The third situation is where there is frivolous or bad-faith litigation. The court may award attorneys’ fees and costs to the other party as a sanction for bringing an action or filing a motion in bad faith (this is governed by Florida Statute 57.105). The court will consider whether a party has unnecessarily prolonged the litigation or been unreasonably uncooperative.
Florida statutes which apply to the award of attorneys’ fees in a family law matter:
Florida Statute 61.16 allows for an award of attorneys’ fees in dissolution of marriage cases, custody cases, alimony cases, and child support cases.
Florida Statute 742.045 allows for an award of attorneys’ fees in paternity actions.
Florida Statute 57.105 provides the basis for recovery of attorneys’ fees when a case is found to be frivolous or lacking legal merit.
Florida Statute 68.093 (Vexatious Litigant Law)
With any award of attorneys’ fees the court must determine is the requested attorneys’ fees are reasonable for the work performed. The court may deny or reduce fees that are deemed excessive.
In order to request an award of attorneys’ fees and costs, a party must file a motion outlining why the award is necessary and submit supporting financial documents. The party requesting fees must also submit an itemized list of all legal fees and costs incurred, detailing the attorney’s hourly rate. The court will determine whether the fees and costs should be awarded at an evidentiary hearing.
Florida Statute 57.105 Motions
Under Florida Statute 57.105, a party must file a motion alleging that the opposing party or their attorney pursued a claim or defense without any factual or legal basis. Under Florida Statute 57.105 there is a specific notice period required, called a Safety Harbor Notice, which must be served upon the other party, detailing why their claim lacks legal or factual support, to allow correction prior to filing the motion. The opposing party shall be given 21 days from the date of being served with the Safety Harbor Notice to withdraw or amend the baseless claim. If the claim is not withdrawn by the 21-day mark then a motion for sanctions can then be filed with the court. The party seeking relief under 57.105 must prove to the court that the opposing side’s position was frivolous (either not supported by the law or the facts). The Motion must be heard by the judge to determine whether sanctions are warranted against the party, the attorney, or both. If granted, the court can award the winning party’s attorney’s fees and costs as well as imposing sanctions. The court will not award fees and costs under Florida Statute 57.105 if it finds an argument was made in good faith to extend or modify existing law, or if an attornet acted in good faith based on client information.
Florida Statute 68.093 (Vexatious Litigant Law)
Florida Statute 68.093 can also apply in Florida family law matters. This Statute, known as the vexatious litigant law is governed by the Florida Family Law Rules of Procedure. The goal of this section is to prevent individuals from persistently abusing the court system by filing frivolous lawsuits. A “vexatious litigant” is defined as someone who has filed five or more civil actions in Florida within the past five years that were decided against them, or that has been previously found to be a vexatious litigant. Under this statute the court can impose certain restrictions, including issuing pre-filing orders, require a security bond for new cases or even prohibit the filing of new actions without court permission.
Under all of these various statutes, the other party in your family law matter could be responsible for your legal fees. You should discuss your unique situation with a Florida family law attorney, to find out the best course of action and whether your legal fees and costs could be ordered to be paid by the other party. Contact Cody Law in St. Augustine Florida if you’d like help navigating a Florida family law issue.
Five Things To Do After Your Divorce is Final
Once your Final Judgment of Dissolution is entered there are several things you should do right away. At Cody Law we strive to help you navigate through the next steps a create the best possible start for your new life ahead. Here are five steps to take post-divorce.
Change your name: If you requested restoration of your maiden name and your final order grants the name restoration, you must take the necessary steps post-final judgment. Obtain a certified copy of your final dissolution right away and take it with you to the Social Security Administration office to report your name change. You will also need to update your license with the Florida Department of Highway Safety Motor Vehicles within ten (10) days after the name change is confirmed with the Social Security Administration.
Change your estate planning documents and beneficiary designations: Once the divorce is final, any document which lists your former spouse as your beneficiary will become automatically void under Florida law. If you do intend to leave your former spouse as the beneficiary, you will need to take steps reaffirm your intentions (for beneficiary designations you will need to contact those institutions individually). You should create a new estate plan, including your Will, Trust and advanced directives like your durable power of attorney, health care surrogate, living will and declaration of preneed guardian.
Implement a joint calendar: if the final order includes timesharing of minor children with your former spouse, the easiest way to organize timesharing is to create a joint calendar. You can coordinate school schedules, extra-curriculars, planned vacations etc. and know ahead of time if any changes to the regular schedule need to be discussed. Popular calendar options include Google Calendar, Custody X Change, or parenting apps with calendaring features, such as Our Family Wizard.
Execute any necessary documents to complete transfer of assets: Depending on what the final judgment states regarding transfer of marital assets, you may need to execute documents such as transfer of title for vehicles or quit claim deeds. If you are recieving funds from a pension or 401K, you may need to have a QDRO (Qualified Domestic Relations Order) completed to receive your portion. Your attorney should guide you regarding what documents need to be executed post-divorce to ensure that all assets are properly transferred.
Speak to your accountant: Finally, you should contact your accountant who can advise you regarding any potential tax implications of the divorce. Transfer of property, alimony and dependency exemptions for the minor children may affect your tax filings post-divorce.
Contact our office for more information and to set up a consultation for divorce or any Florida family law matter.