So you want a divorce, but you have little to no income, and your spouse makes decent money. It’s important to know that you have options.
In an action for divorce, alimony, child custody, child support, enforcement or modification of a court order, if one party is financially disadvantaged, the Court may order the other party to pay this party’s attorney’s fees. This concept is called “fee shifting.” Section 61.16(1) of the Florida Statutes provides in relevant part: “The court may from time to time, after considering the financial resources of both parties, order a party to pay a reasonable amount for attorney’s fees, suit money, and the cost to the other party maintaining or defending any proceeding under this chapter.”
The purpose of fee shifting is to ensure that both parties are similarly able to secure competent legal counsel and that no one party is placed in a stronger position due to his or her financial advantage. The test for awarding such attorney’s fees is whether one party has the need and the other party has the ability to pay these legal fees. In awarding such fees, the Court usually considers the parties’ financial circumstances.
In addition to considering the parties’ financial circumstances, the Court considers what is known as “the Rosen factors,” which include:
1. Scope and history of the litigation.
2. Duration of litigation.
3. Merits of the respective positions.
4. Whether the litigation is brought or maintained primarily to harass (or whether a defense is raised mainly to frustrate or stall).
5. Existence of prior and pending claims.
The Court then must determine that the attorney’s fees sought are reasonable. To do so, the Court must hold an evidentiary hearing.
So regardless of how small your income is, and regardless of how complicated and expensive your family law case might get, rest assured that the court may order your financially-stabled spouse to fully or partially pay your attorney’s fees. And you don’t have to wait until the litigation is over for you to obtain an attorney’s fees award from the Court. Your family law attorney can file a Motion for Temporary Attorneys’ Fees and Costs early on in the case and have the Court issue an order awarding such attorney’s fees.