In every divorce, each spouse (or party) will eventually ask themselves if they can afford to hire an attorney. In some cases, the answer is plain. Perhaps there are simply no assets to argue over and the divorce is a simple matter of paperwork, or perhaps both spouses have set money aside to hire counsel. The hiring of an attorney in a dissolution of marriage action is most often a personal decision that everyone should be able to make on their own. An implicit unfairness exists, however, when one spouse wields the financial power and controls all the family’s money, and the other spouse has no access to money. This is where the law may have to intervene to level the playing field.
The Florida Dissolution of Marriage Act contains a provision for the recovery of attorney’s fees to assist in these imbalanced situations. The purpose of the law is to ensure that both parties have equal access to legal counsel. The law does this by placing the burden of paying attorney’s fees on the spouse that is more capable of paying from their financial resources. This law exists to avoid situations where someone is shortchanged in exercising their rights simply because they could not afford an attorney.
A request for attorney’s fees is the last of the financial claims to be addressed when these items are presented to a court to determine. This falls last in line because the decision-maker must know the post-divorce financial situation of both parties to deter-mine if an award of fees is necessary. This means looking at each party’s debts, income (including alimony), and expenses (including support obligations). The closer the parties are to being equal in this situation, the more likely each party has to pay their own attor-ney’s fees; conversely, the more disparate the parties’ respective assets and income is going to be post-divorce, the more likely it is that one party has to pay all of the attorneys’ fees.
While this law holds true for consideration at the end of the case, parties in a divorce require access to funds early on to hire an attorney to represent them. Most often, the attorney retainers for both parties are paid from whatever marital funds to which the parties have access. If one party is cut-off from the marital assets, then the court can grant “temporary relief” including attorney’s fees from the other. Again, the goal and intent of the law is to allow for fairness and for both parties to have equal access to hiring counsel. Nothing can make someone feel more helpless than being thrust into a divorce with-out the means to secure an attorney to advise them and advocate for them. Especially when their spouse has hired an attorney and cut off their access to funds. If you find yourself in a situation like this, reach out to an attorney to assist you in exercising your rights permit-ted under the law to level the playing field in your divorce.
By Dale Klaus and Reuben Doupé of Coleman, Hazzard, Taylor, Klaus, Doupé & Diaz PA