Florida Statute § 61.16(1) provides that a court in a divorce proceeding “may from time to time, after considering the financial resources of both parties, order a party to pay a reasonable amount for attorney’s fees, suit money, and the cost to the other party of maintaining or defending any proceeding under this chapter …” When deciding whether to award attorney’s fees in a divorce proceeding, Florida courts consider “the financial need of the requesting party and the financial ability of the other party to pay.” Derrevere v. Derrevere, 889 So. 2d 1152 (Fla. 4th DCA 2005). In order to consider the financial needs of a party, the trial court should seek to “prevent the inequitable dimunition” of a spouse’s share of equitable distribution. Bagley v. Bagley, 720 So. 2d 582, 583-84 (Fla. 4th DCA 1998).
Florida’s Fourth District Court of Appeal recently considered the issue of income disparity when awarding attorney’s fees in a divorce proceeding. See Duncan-Osiyemi v. Osiyemi, 117 So. 3d 882 (Fla. Dist. Ct. App. 2013). In Osiyemi, the trial court denied a wife’s request for an award of attorney’s fees following a divorce proceeding, finding that it was not appropriate to award the wife fees despite the husband’s superior income. Id. at *1. On appeal, the Fourth District reversed, holding that the trial court’s decision to not award attorney’s fees to the wife inequitably depleted the wife’s assets. Id.
In finding that the trial court should have awarded the wife attorney’s fees, the appellate court in Osiyemi relied in part on Goldstein v. Goldstein, 90 So. 3d 970, 972 (Fla. 4th DCA 2012). Under Goldstein, a significant income disparity can justify an award of attorney’s fees and costs. Similarly, in Osiyemi the Fourth District recognized that the husband and wife “are not close in having similar resources with which to pay attorney’s fees.” Osiyemi at *2. In two years, the husband’s income will reach approximately $24,000 per month (after alimony and child support), while the wife’s income, including child support, will only reach $11,600. Id.
The Osiyemi court noted the flexibility the trial court had in awarding attorney’s fees. For example, although the husband had substantial monthly expenses, the trial court could have adjusted the husband’s required monthly payments to include attorney’s fees and be paid out over a longer amount of time. Id. Likewise, the trial court could have made the attorney’s fee award payable upon the sale of the marital residence. Neither of these options were implemented by the court below.
If a party in a divorce believes the other spouse should be responsible for attorney’s fees, the first thing to remember is it is important to ask. Fees are typically awarded, if at all, after the parties have filed their respective pleadings and noticed the matter for a hearing. While the court may consider several factors in deciding the matter, the two key issues for consideration are the need of the requesting party and the other party’s ability to pay.