Attorney's Fees, Always an Issue

There are 5 basic issues that may need to be resolved or determined by the court in a divorce case: 1) Parental Responsibility and Timesharing; 2) Child Support; 3) Property Division; 4) Alimony; and 5) Attorney’s Fees. If the divorcing parties have no children then child support, parental responsibility and timesharing won’t be issues. If the parties haven’t acquired assets or debts during the marriage, property division won’t be an issue. If the parties haven’t been married very long, alimony probably won’t be an issue. Even if none of these is an issue, if you are getting divorced and one of you hires an attorney it is likely that attorney’s fees will be an issue.

Courts grant attorney’s fees to ensure that the parties have an equal opportunity to obtain competent counsel. It doesn’t matter how long you’ve been married or whether you have children or property. All that matters is that one party has the ability to pay the attorney’s fees and the other party has a need for assistance in paying his or her attorney. Do not assume that attorney’s fees won’t be an issue because both you and your spouse have good incomes. In some parts of Florida need is relative to the parties’ circumstances. For instance a court awarded attorney’s fees in a case where one of the parties earned $250,000 per year and had significant non-marital assets and the other party earned about $100,000 per year and did not have significant non-marital assets. Neither should you assume that attorney’s fees won’t be an issue because you don’t earn a high income or have a lot of property. Because the purpose of the award of attorney’s fees is to make sure the parties are on equal footing, courts can award attorney’s fees to your spouse when your income is modest and you have no significant assets. Your ability to afford your own attorney’s fees can be seen as an ability to pay your spouse’s attorney’s fees, if your spouse has no source of funds to pay their attorney.

Whether you have to bear the expense of your own attorney’s fees or the other party’s attorney’s fees, it can be a strong motivating factor for you to reach an agreement. If your spouse is going to be responsible for your attorney’s fees, you are not as motivated to settle. Therefore the allocation of attorney’s fees can have a significant impact on whether you can reach a reasonable settlement in your case.

Discussion of attorney’s fees during mediation or other settlement negotiations has the potential of placing your attorney in awkward position. Let’s say during mediation you have reached an agreement on all of the issues except attorney’s fees and that you and your attorney were expecting the other party to be responsible for your attorney’s fees. If your spouse refuses to contribute to your attorney’s fees, you may be inclined to forego the attorney’s fees and settle because all of the issues that are important to you have been resolved. However, your attorney may feel that you should not agree out of concern that you will not be able to pay her or him. Your attorney should not advise you not to settle based on her or his own concerns for payment, but it would be better to avoid this situation.

To avoid placing your attorney in awkward position and to keep both parties equally motivated to settle, you may want to reach an agreement with your spouse before you begin the dissolution of marriage process as to how your attorneys will be paid. Perhaps commit funds from a marital account, agree to put them on credit card accounts in your own names, or just agree how much or what percentage one of you will contribute to the other party’s attorney’s fees.

Experienced family law attorneys will advise you that attorney’s fees are always a potential issue. Attorney’s fees should be included in any discussions or consideration for settlement. If you can agree on this issue before you begin the divorce process, it will be one less issue that you have to resolve during your case and it will increase the likelihood that you will reach an agreement on the other issues.