ATTORNEY’S FEES IN FLORIDA FAMILY LAW PROCEEDINGS

In Florida, a court may award attorney’s fees to a party involved in any proceeding under Chapter 61. Chapter 61 encompasses actions such as dissolution of marriage, enforcement, modification, separate maintenance, time-sharing, support, and appellate proceedings. The fundamental purpose of awarding attorney’s fees is to ensure both parties in a family law proceeding can afford competent legal counsel, thereby maintaining fairness. Additionally, attorney’s fees may be awarded in paternity proceedings.

However, attorney’s fees are not generally authorized in domestic violence proceedings. An exception exists for injunctions for protection against domestic violence, where fees can be awarded under Section 57.105, which addresses frivolous filings.

The Florida Supreme Court in Rosen v. Rosen emphasized that the primary factors in determining entitlement and the amount of attorney’s fees and costs are the need and ability to pay. The court underscored that the intent of the Florida statutes is to ensure both parties can secure legal representation. Thus, trial courts must evaluate each spouse’s need for suit money against their ability to pay. Nevertheless, the court also instructed that all relevant circumstances should be considered, including the scope and history of the litigation, its duration, the merits of the respective positions, whether the litigation is primarily for harassment or stalling, and the existence of prior or pending litigation.

For a trial court to properly award attorney’s fees, the requesting party must provide evidence of both their need for fees and the other spouse’s ability to pay. This evidence can include testimony or exhibits, with financial affidavits commonly admitted. The assessment of “need” varies across Florida’s district courts of appeal; some focus on actual need, while others emphasize the disparity of resources between parties.

When considering a request for attorney’s fees, courts can evaluate all income and assets, whether marital or nonmarital. They must identify the source and amount of any imputed income considered in the fee request. Failure to consider evidence of ability to pay can result in reversal. The court must admit and consider financial affidavits or other documentation and evaluate the value of all assets, liquid or illiquid. In determining a party’s ability to pay attorney’s fees, the court must consider the impact of all financial obligations, including child support and alimony.