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Awards of Fees and Costs in a Florida Divorce or Custody Litigation Case

Judge With GavelWith many family law litigation matters, finances can be an important part of the overall case. Your South Florida family law attorney can go over with you some of the scenarios in which you may be able to obtain a court order forcing your ex to pay your court costs or fees. Often, these matters come down to the respective spouses’ need and ability to pay. In certain scenarios, however, those factors are not the only factors. In one recent case, the wife’s misconduct led the court to give her a much smaller fees and costs award than she desired.

In January 2014, Sharon filed for divorce from her husband, Brian, after eight years of marriage. That was the beginning of a prolonged and bitter battle. Shortly after she filed for divorce, she filed for a domestic violence protective injunction. Among other things, she accused Brian of molesting the couple’s children. She made these accusations, not only to the judge, but also to the children’s pediatrician and their school principal. She told the pediatrician that she thought that the father was giving illegal drugs to the son. There was one major problem with the abuse allegations, however:  they were all false, according to the court.

Along the way, the mother also asked the court to appoint a guardian ad litem for the children to aid in determining timesharing, even though she had already agreed with the father as to shared parental responsibility and equal timesharing. The mother also argued that, since the father was wealthier, he should have to pay for the guardian ad litem.

By the time the case reached a final hearing, the mother asked the father to pay out more than $900,000 for attorney’s fees, accountant fees, and other costs. Even though the father had paid $21,000 of guardian ad litem bills (and she had paid nothing), she also argued that the father should pay the remaining $8,000 owed to the guardian ad litem.

The trial judge made findings in which he found that she had the need for payment of her attorney’s fees, and the husband had the ability to pay. In a case in which one party asks the court to order the opposing party to pay her attorney’s fees, the court must find that the requestor has a need and the opponent has the ability to pay before it can issue such an order. In many cases, those findings by themselves will trigger an award of attorney’s fees.

These two factors are not, however, the only things that a judge can consider. The court can look at what this trial judge described as “the history of the litigation.” And the history of this litigation was one in which the mother had committed numerous and egregious acts of misconduct. There were the false abuse allegations, the request for the guardian ad litem, and “other ‘unreasonable legal positions’” that “showed she had ‘zero desire to settle the case.’”

Since most of the mother’s fees incurred resulted from her own misconduct, the trial court ordered payment of only a small fraction of the total amount she had requested.

She appealed that ruling, but she lost. The appeals court affirmed that the trial judge was free to look at the “history of the litigation” in making his ruling. While need and ability to pay are the “central inquiry” in a request for payment of fees, trial courts can consider “any factor necessary to provide justice and ensure equity between the parties.”

Put in more “everyday” language, as the court did in summing up, the fees statute’s “purpose is to ensure that both parties can obtain competent representation. It does not enable a party to engage in misconduct, rack up a massive amount of fees, and then force the other party to pay merely because they have the means to do so.”

Whether yours is a divorce, custody/timesharing, or other family law dispute, your case needs the skill and knowledge of experienced counsel. The determined South Florida divorce attorneys at Sandy T. Fox, P.A. have been helping people with family law-related issues for many years, and we are here to help you. Contact our attorneys online or by calling (800) 596-0579 to schedule your confidential consultation.

More blog posts:

Alimony Award Equalized Incomes, Stymied Florida Wife’s Claim for Attorneys’ Fees, Fort Lauderdale Divorce Lawyer Blog, Oct. 6, 2015

Court Orders Husband to Pay Wife’s Attorney’s Fees in Child Support Battle, Fort Lauderdale Divorce Lawyer Blog, Sept. 17, 2013

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