Recovery of Attorney’s Fees and Costs
Section 61.16 of the Florida Statutes provides that, in a dissolution of marriage or post-dissolution of marriage proceeding, the court may enter an award of attorney’s fees and costs where one spouse has a greater need and the other spouse has a greater ability to pay. In paternity actions, fees and costs can also be awarded where one parent has a greater need and the other parent has a greater ability to pay. See Fla. Stat. 742.05. These statutes were enacted to ensure that both parties have the ability to obtain competent legal counsel.
In awarding attorney’s fees and costs, the primary consideration is whether there is a disparity in the parties’ financial resources. The court will analyze whether one party has superior assets and/or a greater earning capacity and whether the other party has a greater need for an award of attorneys’ fees and costs.
Florida courts have found that a financial disparity exists and that an award of reasonable attorney’s fees and costs is warranted, where one party’s income is at least three times greater than the other party’s income. For example, in Zakarin v. Zakarin, 565 So. 2d 790, 793 (Fla. 3d DCA 1990), the court awarded attorney’s fees and costs to the Wife upon finding that the Husband earned over $200,000 per year and that the Wife earned less than one-third of that amount. Similarly, in Allen v. Heinrich, 623 So. 2d 540 (Fla. 2d DCA 1993), the court awarded fees and costs to former wife after finding that former husband’s earnings were three times greater than former wife’s earnings.
The court may enter a partial fee award where there is a disparity in income that does not amount to one party’s income being three times greater than the other party’s income. For example, in Cooper v. Cooper, 19 So. 3d 421 (Fla. 4th DCA 2009), the court ordered the husband to pay two-thirds of his wife’s attorney fees after finding that the husband’s income was more than two times greater than wife’s income.
