Articles Posted in Attorney’s Fees and Costs

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money_grabber.pngA wife fighting to avoid using her alimony to pay a lien imposed by her former divorce lawyer must return to a Broward County trial court to continue litigating the matter. The 4th District Court of Appeal concluded that whether or not the attorney’s lien was enforceable against the wife’s alimony award depended on whether the alimony was needed to pay for the wife’s “daily sustenance or the minimal necessities of life,” or whether it was used to cover less basic expenses.

The case began when M.T. (wife) filed for divorce from her husband, L.T.. The wife sought, among other things, an award of alimony in order to maintain the lifestyle to which she had been accustomed. The wife hired an attorney, but, three months into the relationship, the attorney and the client parted ways. Ultimately, the divorce case proceeded to its conclusion. The trial court’s ruling included an award of alimony to the wife.
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money-justice-scales.jpgA recent 1st District Court of Appeal ruling provides insight upon all the analysis that must go into an a award of attorneys’ fees in a dissolution of marriage case. Awarding fees and costs requires finding that one spouse has a need for such an award, and the other spouse has the ability to pay. In the recent case, the trial court’s alimony award to the wife essentially equalized the incomes of both spouses, meaning that each spouse had an equal ability to pay and, as a result, the husband should not be required to pay his wife’s attorneys’ fees and costs.

The decision came in the case of R.H. (husband) and H.H. (wife), who decided to divorce after 36 years of marriage. At the time of the couple’s divorce trial, the husband’s annual income was $89,000, and the wife’s was $39,000. The trial court ordered the husband to pay the wife alimony in the amount of $2,100 per month for 12 years. The trial court also decided that the husband should pay the wife another $6,000 for her attorneys’ fees and costs.
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law-clip-art.gifParties in divorce cases will, in many instances, submit proposed final orders to the trial judge. A recent 5th District Court of Appeal ruling serves as a reminder that, although these submissions are permissible and often helpful to trial judges, courts should be hesitant to adopt them in their entirety when the opposing side has no opportunity to comment or object. Additionally, parties are not entitled to forms of relief they didn’t ask for in their petitions, even if they raised the issues in their pre-trial documents.

The recent case involved CC’s filing for divorce from her husband, DC. The wife’s petition asked the court to dissolve the marriage, create a time sharing schedule for the couple’s child, award child support, and distribute the couple’s assets and liabilities.
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In Higginbotham v. Higginbotham, the parties entered into a antenuptial agreement that limited the wife’s attorney’s fees to $5,000. The divorce court in Miami, Florida upheld the validity of the antenuptial agreement and subsequently awarded the wife $305,640 in temporary attorney’s fees and $18,963.16 in temporary costs.

While the Third District Court of Appeal agreed with the Wife that the $5,000 limit on the husband’s liability to pay attorney’s fees was unenforceable, it held that the temporary attorney fee award was excessive. The Court reasoned that given the facts and circumstances of this case the amount requested for litigating the validity of a antenuptial agreement was unreasonable especially in light of the result obtained and the fact that the Husband’s attorney’s fees were $138,442. Accordingly, the matter was remanded to Miami-Dade Circuit Judge Stanford Blake for a substantial reduction of the fee award.

The purpose of your Broward divorce attorney requesting temporary attorney’s fees ad costs is to ensure that both parties have similar ability to secure competent legal counsel. Temporary attorney’s fees are often needed to mitigate the harm that an impecunious spouse would suffer as a result of the other spouse’s potential financial advantage. Temporary attorney’s fees and costs are based upon need and ability to pay. The court is also required to determine the reasonableness of the award of temporary attorney’s fees and costs.

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In Greenwald v Greenwald, the husband and wife were married on May 18, 2004. Fourteen months later, the parties filed for divorce in Miami-Dade. In support of her claim for permanent alimony, the wife claimed that the husband induced her to quit her job were she earned $100,00 per year. At trial, e-mail evidence proved that this claim was false since the wife wanted to quit her job prior to the marriage.

While the wife’s request for permanent periodic alimony was denied, Judge Scott Bernstein awarded her $65,000 in attorney’s fees and costs to be paid by the husband. In reversing the trial court’s award of attorney’s fees and costs to the wife, the Third District Court of Appeal held that the Miami divorce court should have denied the wife’s request for attorney’s fees and costs. The court reasoned that the wife made a claim for permanent alimony in a short-term marriage which is rarely successful, the case went to trial on the permanent alimony issue, the basis of the claim was false and the wife turned down a favorable opportunity to settle the alimony matter before trial in a lump sum payment of $36,000.

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Florida statute 61.16 and 61.17 authorize the Broward marital and family law judge to award attorney’s fees, suit money and costs in a divorce, separate maintenance, time-sharing, support and enforcement proceeding. The Fort Lauderdale court has equitable jurisdiction to award attorney’s fees, suit money and costs during an annulment. However, any fees and costs attributable to a domestic violence injunction can not be awarded in Florida.

Temporary attorney’s fees and costs are awared during the pendency of a case. The purpose is to allow an award of attorney’s fees and costs to ensure that both parties will have the same ability to secure competent legal representation of their cases.

In order to be awarded attorney’s fees and costs, the requesting spouse must show that they have a need for attorney’s fees and costs. Depending upon the jurisdiction, their is a requirement to show an actual need, superior ability to pay or relative financial positions when determining the need of a spouse. In addition, the spouse requesting an award of attorney’s fees and costs must show that the other spouse has an ability to pay. The court must consider the impact of the final judgment when determining if a spouse has the ability to pay. Also, the court must look to the resources available to the paying party without having to look to resources beyond their individual control