This is one of the most common questions I am asked during an initial consultation with a new client. Legal fees in a divorce matter are governed by Florida Statute 61.16.
61.16 Attorney’s fees, suit money, and costs.
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, costs and suit monies to the other party in order to maintain or defend any proceeding under this chapter, including initial divorce proceedings, enforcement actions, modification proceedings and appeals. This includes monies for experts – such as a forensic accountants, real estate appraisers, or psychologists, if needed. This allows for an equal playing field for the parties and permits the parties to choose the legal representation of their liking. It also ensures that the spouse with more money cannot “bully” the other spouse with less money to take accept an “unfair” settlement offer.
The Bottom Line
Who pays attorney’s fees and costs in a divorce is based on one party’s ability to pay vs. the other party’s need for attorney’s fees. It is not unusual for one party to be the “bread winner of the marriage” (doctor, lawyer, accountant, engineer, business owner, etc.) while the other party has limited to no income (i.e. housewife or stay at home dad).
If your spouse is the “bread winner” in the marriage, then they may be paying a reasonable amount of your attorney’s fees, if not all of your attorney’s fees in a divorce proceeding (depending on the income of your spouse and the marital assets of the parties). However, if at the conclusion of your divorce you are in the same financial position as your spouse then each party may pay their own attorney’s fees.
Retainer Fee for an Attorney
At the outset of a divorce, each party may need to pay their own initial retainer fee to their chosen attorney; however, the spouse that is in “need” of funds to pay for his/her attorney’s fees will file a Motion for Temporary Attorney’s Fees and Costs with the Court. Sometimes a party’s spouse will voluntarily pay the initial retainer so the less wealthy spouse can retain counsel.
The hearing on a Motion for Temporary Attorney’s Fees and Costs is usually a thirty (30) to sixty (60) minute hearing that is set within forty-five (45) to ninety (90) days of the date that you file for divorce. At this hearing the Judge may order that the higher earning spouse pay some reasonable, temporary attorney’s fees to you or release some of the parties’ assets to pay for each party’s attorney’s fees going forward.
A spouse that has been out of the work force for a number of years or that is not in control of the parties’ finances should not feel “trapped” in the marriage because they do not have money to hire an attorney because the higher earning spouse may be responsible to pay reasonable attorney’s fees in the divorce proceedings, including paying for any experts that you may need.