Who Pays Attorney Fees in a Florida Divorce?

By Larry Schott, Florida Family Law Attorney  |  Schott & Tolchinsky, P.A.

One of the first questions people ask when they find out a divorce is coming is whether they can afford a lawyer. If your spouse controls the finances, earns significantly more than you, or is the one who chose to file, that concern is real and understandable. The good news is that Florida law specifically addresses this situation and gives courts the authority to order one spouse to contribute to the other’s legal fees.

Whether you qualify depends on the specific facts of your case. But the framework is there, and knowing how it works is the first step toward using it.

1. The Law That Governs Attorney’s Fees in Florida Divorce

Florida Statute 61.16 is the statute that gives courts the authority to award attorney’s fees, suit money, and costs in a dissolution of marriage proceeding. It applies not just to the initial divorce case but also to enforcement and modification proceedings afterward, and to appeals.

The statute exists for one core reason: to make sure that both spouses have access to competent legal representation regardless of who controls the money. Without it, the wealthier spouse could effectively price the other out of meaningful participation in the divorce by simply outspending them on attorneys and litigation costs.

Florida Statute 61.16 does not require expert testimony to support a fee award application. The court can consider the parties’ financial affidavits and the circumstances of the case without a formal evidentiary hearing on fees alone.

2. Need and Ability to Pay: The Primary Standard

The starting point for any attorney’s fees analysis under Florida Statute 61.16 is a two-part test: need and ability to pay.

The court looks at whether one spouse genuinely needs help meeting legal fees given their financial resources, and whether the other spouse has the financial ability to contribute to those fees without creating undue hardship for themselves. Both prongs must be present. A spouse with genuine need but whose spouse has no ability to contribute will not receive a fee award. A spouse whose spouse has significant resources but who has no actual need will not receive one either.

Importantly, you do not need to be completely unable to pay your own fees to qualify for an award. Florida courts have recognized that partial awards are appropriate when there is a meaningful disparity in financial resources even if the lower-resourced spouse has some ability to pay. The question is whether the disparity is significant enough that leaving both parties to pay their own fees would result in one side having substantially inferior legal representation.

3. What the Rosen Case Added: Litigation Conduct Matters

Florida Statute 61.16 establishes the need and ability to pay framework, but the Florida Supreme Court expanded the analysis considerably in a landmark case that every Florida family law attorney knows well.

What this means practically is that a spouse who acts in bad faith, files frivolous motions, drags out the proceedings unnecessarily, or engages in tactics designed to drive up the other side’s legal costs can be ordered to pay attorney’s fees as a consequence of that conduct, even if the financial disparity between the parties would not otherwise support an award. The court has broad discretion to consider the full picture of how the litigation was conducted by both sides.

The flip side is also true. A lower-income spouse who engages in senseless or vindictive litigation behavior may find that the court declines to award them fees despite a genuine financial disparity, because the conduct of the case factors into the analysis.

4. Specific Situations Where Fee Awards Are Available

Florida Statute 61.16 is broader than most people realize. It covers attorney’s fees not just in the initial dissolution proceeding but across a wide range of related matters.

• Initial dissolution proceedings The most common context. If there is a meaningful income or asset disparity between spouses, the lower-resourced spouse can seek contribution from the other toward their attorney’s fees during the divorce itself.
• Temporary fee awards during the pendency of the case A spouse who cannot afford to retain counsel can seek a temporary fee award at the outset of the case, before the final judgment is entered. This is often called pendente lite fees. Courts recognize that without this, the lower-resourced spouse would be at a disadvantage from day one.
• Enforcement proceedings If a former spouse violates a court order, whether by failing to pay alimony, ignoring the parenting plan, or refusing to transfer assets as required, and you have to return to court to enforce compliance, you can seek attorney’s fees for those enforcement proceedings under Florida Statute 61.16.
• Modification proceedings When one party files a motion to modify alimony, child support, or time-sharing, the court can award fees in that proceeding as well, applying the same need and ability to pay analysis.
• Appeals Attorney’s fees can be awarded in appellate proceedings, with courts at the appellate level primarily considering the relative financial resources of the parties and whether the appeal was frivolous.
• Contempt proceedings When a court finds a party in contempt, it can separately assess attorney’s fees and costs against the contemptuous party after making a determination of their ability to pay.

5. How Much Can Be Awarded

Florida Statute 61.16 authorizes an award of a “reasonable amount” of fees. What reasonable means in practice depends on the complexity of the case, the hourly rates customary in the community for family law work, the number of hours reasonably spent on the matter, and the financial circumstances of both parties.

The court does not automatically order the wealthier spouse to pay all of the other’s fees. It orders what is reasonable given the circumstances. In many cases that means a partial contribution rather than full payment of the other side’s bill. A spouse earning $80,000 per year and a spouse earning $250,000 per year, for example, might result in the higher earner paying a portion of the lower earner’s fees rather than the entire amount, depending on the case.

Courts can also order fees to be paid directly to the attorney rather than to the other party, which gives the attorney a direct enforcement mechanism if the ordered payment is not made.

6. When to File the Motion

One of the most important things to understand about Florida Statute 61.16 is that you can seek attorney’s fees at any point in the proceeding, not just at the end of the case. The statute gives courts continuing jurisdiction to make fee awards throughout the litigation.

In practical terms, this means:

• File early if you need help retaining counsel A motion for temporary attorney’s fees can be filed at the very beginning of the case, even before significant litigation has occurred. Courts understand that a spouse who cannot afford a retainer will be at an immediate disadvantage if the other side is already represented.
• File again if the other side runs up costs unnecessarily If your spouse or their attorney engages in tactics that significantly increase your legal fees beyond what was reasonably necessary, an additional fee motion citing the Rosen factors is appropriate at that stage of the case.
• Address fees at final hearing Many fee requests are resolved at or near the final hearing when the full financial picture of both parties is before the court and the conduct of the litigation can be evaluated as a whole.

7. When a Fee Award Is Not Likely

A fee award under Florida Statute 61.16 is not automatic and is not guaranteed simply because your spouse earns more than you. There are circumstances where courts are unlikely to order fees even when there is some financial disparity.

Courts generally will not award fees when both parties have adequate financial resources to retain and pay their own attorneys, even if one earns more than the other. The need prong requires genuine financial hardship or meaningful inability to obtain competent representation, not simply a preference to have the other side pay.

Courts also look unfavorably on fee applications from spouses who have themselves engaged in unnecessary or vexatious litigation. If the record shows that the party seeking fees was equally responsible for driving up litigation costs, the court may deny the application or reduce the award significantly.

Finally, a party who has dissipated marital assets, concealed income, or otherwise acted in bad faith in managing the marital finances may find that conduct weighs against them in the fee analysis, even if the financial numbers alone would otherwise support an award.

8. The Foundation Behind the Law: Canakaris and the Reasonableness Requirement

The Rosen decision did not emerge from a vacuum. It built directly on a foundational Florida Supreme Court case decided nearly two decades earlier that established the core purpose behind Florida’s attorney’s fee statute in divorce proceedings.

Canakaris established the principle that Rosen later expanded upon: the goal is not to punish the wealthier spouse but to level the playing field so that the outcome of a divorce is driven by the merits of each party’s position rather than by one side’s ability to outspend the other on legal representation.

Beyond need and ability to pay, Florida courts also require that the fees awarded be both reasonable and necessary given what was actually at stake in the litigation. A fee award that does not address whether the hours billed and rates charged were proportionate to the complexity and value of the case is subject to reversal on appeal. This matters practically: the amount you seek in a fee motion must be supportable by the record. Courts scrutinize the billing carefully and will not simply rubber-stamp whatever total your attorney generated. Fees that were excessive relative to the issues involved, or that were incurred pursuing positions that had little merit, are unlikely to be fully awarded even when the financial disparity between the parties otherwise supports a contribution.

9. Fees as a Sanction for Bad Faith Conduct

Beyond the need and ability to pay analysis, Florida courts have an independent basis to award attorney’s fees as a sanction for bad faith conduct during litigation. This is distinct from the Florida Statute 61.16 framework and applies when one party’s conduct in the proceedings rises to the level of abuse of the judicial process.

Examples of conduct that can trigger a sanctions-based fee award include filing motions with no legitimate legal basis, making misrepresentations to the court, refusing to participate in discovery in good faith, violating court orders, and pursuing litigation positions that are objectively unreasonable given the known facts.

When a court awards fees as a sanction, the financial circumstances of the parties are less central to the analysis. The focus is on deterring and compensating for misconduct rather than equalizing resources. A wealthy spouse who engages in bad faith litigation conduct can be ordered to pay sanctions-based fees. So can a lower-income spouse whose conduct was egregious enough to warrant that remedy.

If you believe your spouse is engaging in bad faith litigation tactics, document everything and raise it with your attorney promptly. Courts have broad discretion in this area and the record you build throughout the case matters.

Related Articles:

• Working With a Florida Divorce Lawyer
• Contested Divorce in Florida
• Step-by-Step Guide to Getting a Divorce in Broward County
• Alimony in Florida: What You Need to Know
• How to Divide Marital Assets in Florida During a Divorce