Boca Raton Divorce Lawyer Blog

In dissolution of marriage actions, attorney's fees are frequently awarded when there is a large disparity in the parties incomes. Generally speaking, the underlying premise is to "put the litigants on an even playing field." Both parties should have the ability to retain and be represented by competent counsel throughout the dissolution of marriage proceedings. This holds true whether the proceedings are in Boca Raton, Delray Beach, Fort Lauderdale, or anywhere else throughout the state of Florida.

The award of attorney's fees is governed by Florida Statute 61.16, which is titled as Attorney's fees, suit money and costs. An award of attorney's fees requires both of the parties to appear in front of the judge and to present their evidence regarding income, expenses, and their respective needs for an attorney's fee request.

A judge has the discretion to make an award of attorney's fees on both a temporary basis as the case is progressing, as well as on a permanent basis as the case is concluding.

Florida law provides that in a dissolution of marriage proceeding, both the husband and wife are entitled to be on an "even playing field." What this means is that the spouse who controls the family finances and who earns the higher income, frequently is required to pay for the legal fees and expenses of the other spouse. This is frequently referred to as the "need versus the ability to pay" standard.

This is not however, the only standard utilized by the courts when awarding attorney's fees and costs. Florida Statute 57.105 is becoming a tool frequently utilzed by the courts to impose sanctions by awarding attorney's fees, when appropriate.

Section 57.105(1) provides that the award of attorney's fees are appropriate when:

"The losing party or the losing party's attorney knew or should have known that a claim or defense when initially presented to the court or at any time before trial:

(a) Was not supported by the material facts necessary to establish the claim or defense; or

(b) Would not be supported by the application of then existing law to those material facts.

Sullivan v. Sullivan, 35 Fla. L. Weekly D2896a, decided on December 22, 2010, is instructive on this concept. In the Sullivan case, the former husband was found in civil contempt for various issues arising under the final judgment. He never took an appeal on those findings. Subsequent hearings were held, and he argued that the reason he did not pay his former wife, as ordered by the court, was that he deposited funds into an LLC account, and it was the LLC who should pay, not him.

The former husband controlled the funds and had exclusive control of the LLC. The appellate court viewed this factual situation as one falling squarely within the confines of Florida Statute 57.105 and awarded attorney's fees, to be shared equally by the former husband and his lawyer.

There is a presumption that a prenuptial agreement was entered into freely and voluntarily. Usually each party to the agreement has had the opportunity to be advised by their own attorney, and each party has made a complete and total financial disclosure of their assets and liabilities tio the other party.

Prenuptial agreements usually contain a provision for prevailing party attorney's fees. This means that if you decide to challenge the validity of a prenuptial agreement that contains a prevailing party attorney's fee clause, you will be held responsible for those attorney's fees if your challenge is not successful and the agreement is upheld.

The Supreme Court of Florida resolved this issue in June of 2005 when they decided the case of Lashkajani v. Lashkajani, 911 So.2d 1154 (2005).. The court's ruling was clear and precise. The court held that prenuptial agreement provisions awarding attorney's fees and costs to the prevailing party in litigation regarding the validity and enforceability of a prenuptial agreement are enforceable.

The point to be made is is a simple one. Proceed with extreme caution if you are considering a challenge to a prenuptial agreement. The potential cost may well outweigh any benefits you are seeking to achieve by virtue of your challenge.