ATTORNEY’S FEES AND COSTS

The individual trial judge has discretion on whether or not to order one party to pay for the other party’s attorneys’ fees and costs (which includes but is not limited to court costs, deposition costs, and the costs associated with the retention of experts, assuming that it is applicable in that particular proceeding). According to Florida Statute §61.16, each party should be able to litigate the divorce case on equal footing. As I mentioned above, it has a very similar analysis like the alimony was mentioned regarding one party’s need and the other party’s ability to pay.

As an example, even though this may be an exaggeration, picture a man who earns $400,000 per year compared to his wife, a stay-at-home mom, who did not earn an income during the marriage. To challenge child custody (timesharing) or any other issue, this husband could theoretically hire a team of 10 attorneys to out-litigate his wife by outspending her, thus depriving her of an appropriate defense, causing her to lose because she cannot even afford one attorney, let alone 10. According to the stat-ute, in that scenario, in order to allow the parties to litigate on equal footing and level the playing field, the court may compel the husband to pay for some, if not all of the wife’s attorneys’ fees and costs. As I said, this may be an exaggerated example, but for illustration purposes, it lets us know how the court could handle this issue. A court could also award fees against a husband who makes $60,000 per year compared to his wife who is not working or is instead making a low income.

This is important because parties need to first know that they may actually have access to the courts, and the party with the money may soon realize that the more they fight, they may also end up having to potentially pay some, if not all, of the other party’s attorneys fees and costs.

This often gets parties to try to work even harder on a settlement agreement resolving their case without a need for trial due to the uncertainty of what could happen with this issue at the time of trial, and the uncertainty that is associated with having fees and costs assessed against them.

There also is a flip side to this. Knowing that the court may not potentially give all of the attorney’s fees and costs to the other party may also let them realize that there is no guarantee that they will be able to get all of their fees and costs paid by the other side. This means that they may actually end up paying a large portion of their own attorneys’ fees and costs.

Knowing both sides of the coin makes the parties often come to the bargaining table with a more grounded approach, trying to resolve their issues without the need for a trial or further litigation because neither party wants to risk a negative result and/or having to be responsible for some, if not all, of the other side’s attorneys’ fees and costs.