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.

The Unresponsive Spouse: Default in a Dissolution of Marriage

When you initiate a divorce by filing a Petition for Dissolution of Marriage with the court, the initial pleadings must be served on your spose via process server. Timing is crucial when it comes to responding to the petition. In Florida the responding party has 20 days from service to file their response. But what happens when your spouse fails to participate in the divorce? If your spouse fails to respond to your divorce petition, you may be wondering what happens next. At Cody Law, we aim to guide you through each step in the process and keep you informed and educated along the way.

What Happens Now?

The first step, after the 20 day period has elapsed with no response, is to obtain a Clerk’s default. From there, once defaulted, the case will proceed without your spouse’s input. The court will require a final hearing in order to enter the Final Default Judgment. The relief you requested is not automatic, just because your spouse has been defaulted however. The court will not grant any requests that are unreasonable, even without the other party’s participation. Even if your spouse does not participate, you will still need to present evidence to the judge and testimony in support of your requests for relief. Depending on your individual situation, the court will need to determine each of the following issues, without your spouse’s input. :

• Division of Assets and Debts: Under Florida’s equitable rules, marital assets and debts are divided “fairly” although not necessarily equally. If you proposed a division of assets in your petition, the judge may follow your proposal as long as it is reasonable. The judge however has discretion to modify the proposed division if it is unfair or does not meet requirements under the law.

• Alimony: If you requested alimony in your petition, you will need to present evidence to the judge showing that you have a need for alimony and that the other spouse has ability to pay. The court can award alimony without the other spouse’s input so long as sufficient evidence is presented showing that alimony is necessary in your case.

• Parental Responsibility, Timesharing and Child Support: Even in a default situation, where there are minor children involved, the court must determine parental responsibility, timesharing, and child support based upon the best interests of the child. Child support is calculated under the Florida child support guidelines contained under Florida Statute 61.30, using the spouses’ financial information and the amount of overnights awarded to calculate the support amount. You should provide your financial affidavit to the court. If your spouse fails to provide financial information, the court may estimate their income based on available evidence.

  Does Not Responding Mean We Stay Married?

  A common misconception is that if a party just doesn’t respond then the divorce can’t happen. Florida is a no-fault divorce state, which means that the court only requires proof that the marriage is irretrievably broken in order to grant the divorce. As long as all procedural requirements are followed, the judge will enter the divorce, even without the other spouse’s participation.

  Even if your spouse is not participating in your divorce, you still need to present your case to the judge and ensure that your requests align with Florida Law. If you have questions about divorce or obtaining a default divorce in Florida, contact our office to schedule a consultation.