Who pays the attorney’s fees in a divorce?
As a family law attorney in Fort Lauderdale, I periodically receive phone calls from individuals seeking advice on divorce who inquiry, “How can I pay for a family law attorney – my spouse makes all the money and controls the bank account?”
Sadly, these individuals (who are typically, but not always, stay at home wives) routinely claim that their spouses (who are typically, but not always, “bread-winning” Husbands) are trying to “bully” them to agree to unfavorable divorce terms either pro se (without an attorney) or through their spouse’s personal attorney by threatening to withhold child support or alimony. The “bullying” spouse falsely claims that only THEY can retain a divorce attorney and that THEY will crush the unemployed spouse in Court without an attorney.
This is patently false.
In Florida, provisions are in place to ensure that BOTH parties in dissolution of marriage proceedings (i.e. divorce) will have “similar ability to secure competent legal counsel.” Additionally, it is not necessary that one spouse is completely unable to pay attorney’s fees in order for the trial court to require the other spouse to pay for such fees. Simply put, an experienced divorce attorney WILL request the Court to order one spouse (the one with the superior ability to pay) to satisfy the other spouse’s attorney’s fees when warranted.
Besides attorney’s fees, provisions are in place to secure temporary support (such as alimony, living expenses (i.e. mortgage), and child support) for the spouse in need. Temporary support is paid out of income – the recipient spouse is not compelled to consume separate assets (either marital or non-marital) to maintain the lifestyle enjoyed during the marriage.
How does the Court determine if I’m entitled to attorney’s fees?
The standard for both attorney’s fees and temporary support are based on each party’s respective NEED and ABILITY TO PAY. The Court will consider a number of factors, including all financial resources available to the parties, before awarding attorney’s fees. Both factors (NEED and ABILITY TO PAY) must be met before the Court will award attorney’s fees, however.
Here is the type of language an experienced Fort Lauderdale divorce attorney would include in its pleadings when requesting attorney’s fees.
The Wife has been required to retain the services of the undersigned attorneys. She is unable to pay reasonable attorney’s fees, costs, suit money, and expert fees needed for these proceedings. The Wife is entitled to attorney’s fees and costs pursuant to §61.16, Fla. Stat, Rosen v. Rosen, and its progency based on the Husband’s superior ability to pay and her need for such an award and/or if the Husband engages in any vexatious or unnecessary litigation.
If you are considering filing for divorce in Fort Lauderdale but are afraid that you cannot afford an experienced family law attorney because your spouse controls the finances, please speak with a divorce attorney ASAP. The divorce and family law attorneys at Lyons, Snyder & Collin offer consultations free of charge.