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Divorce and Attorney’s Fees

The reality of a dissolution of marriage is that no matter how “uncontested” it might seem, there is a cost for attorney’s fees. Each attorney bills an hourly rate and requires a retainer or a “down payment” to begin representation. I am always asked, how much will this case cost me? My response is always the same, it’s impossible to know for sure since fees are based upon the time an attorney spends on a case. The more complex the case, the more the fees. The more litigation, the higher the fees. In reality, the clients and not the lawyers have control over how much a dissolution will cost.

So, what if you are for example a stay at home parent and your spouse is the one who is your sole means of support? How does someone who does not have an income afford representation? Florida law provides for those types of circumstances. Pursuant to Florida Statutes, an individual can request the court to award attorneys fees from his/her spouse based upon a number of factors. The law states:

A trial court may from time to time, depending on the circumstances surrounding each particular case award a reasonable attorney’s fee after considering the financial resources of both parties.

This provision is based upon the ability of one spouse to assist in the payment of fees, as well as the need of the requesting spouse. Since a divorce proceeding is a proceeding in equity, the court is required to consider basic rules of fairness and equity. Therefore each party should have the same right of representation, regardless of their earning potential. In order to achieve this equity, the court will under certain circumstances require one spouse to contribute to the other spouse’s fees. Since Florida is a no-fault state, the court will not take into consideration as a factor who initiated the proceedings.

In addition to the financial resources of each party, other relevant circumstances can be considered by the court. These include the scope and history of the litigation between the parties, the length of litigation and the merits of each party’s position in the case. In addition, the court can consider whether the litigation brought by one party has been done to primarily harass the other party. Or whether one of the parties has been attempting to delay or frustrate the proceedings. In other words, unnecessary or unreasonable litigation may cause that person to pay for wasting the court’s time.

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