Although virtually every petition for dissolution of marriage contains a provision for attorney’s fees, an award of fees is not a guarantee and occurs less frequently than generally assumed.

Section 61.16 of the Florida Statutes is the underlying authority for the Court to award attorney’s fees. Pursuant to Section 61.16, “[t]he court 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, including enforcement and modification proceedings and appeals.” Section 61.16(1), Florida Statutes.

When seeking fees or when fees are at issue, it is important to keep in mind the actual purpose of Section 61.16(1), Florida Statutes. The premise behind the Court’s ability to award attorney’s fees in dissolution and post-dissolution proceedings is to ensure that both parties will have similar financial ability to obtain competent legal counsel. Humerickhouse v. Humerickhouse, 2D05-3997 (Fla. 2d DCA 2006).

Consequently, the primary consideration for awarding fees is whether a party who is seeking a fee award has a financial need for such an award and whether the other party has the ability to pay such fees. See Von Baillou v. Von Baillou, 959 So. 2d 821 (Fla. 4th DCA 2007). A financial need is generally defined as the necessity for some financial assistance to engage an attorney and pay attorney fees. Morrison v. Morrison, 60 So. 3d 410 (Fla. 2d DCA 2011) (quoting Satter v. Satter, 709 So. 2d 617, 619 (Fla. 4th DCA 1998)).

Fee awards must also be based upon the current relative financial positions of the parties and not those at some unspecified future date. Kemper v. Kemper, 838 So. 2d 1227 (Fla. 5th DCA 2003) (emphasis added). The Court must consider the totality of the parties’ financial circumstances as well as the effect of the final judgment on the parties’ relative financial status. See Teschner v. Teschner, 760 So. 2d 215 (Fla. 2d DCA 2000); Boyett v. Boyett, 683 So. 2d 1140 (Fla. 5th DCA 1996). Furthermore, a fee award must be based on the parties’ individual financial resources and not the financial assistance provided by family or friends. Humerickhouse v. Humerickhouse, 2D05-3997 (Fla. 2d DCA 2006) (emphasis added).

Although the need and ability to pay are the primary considerations when determining entitlement to fees, they are not exclusive. Rosen v. Rosen, 696 So. 2d 697 (Fla. 1997). A Court may also consider duration and history of litigation as well as whether its main purpose was to harass or frustrate. Id.; Carter v. Winn-Dixie Store, Inc., 889 So. 2d 960 (Fla. 1st DCA 2004). In any case where a Court finds that an action is frivolous or spurious or was brought primarily to harass the adverse party, a Court has the discretion to deny a request for attorney’s fees. Humerickhouse v. Humerickhouse, 2D05-3997 (Fla. 2d DCA 2006).

Finally, in determining the reasonableness of attorney’s fees, a Court generally conducts an evidentiary hearing where evidence is presented by both parties on the issue. An opposing party must be given an opportunity to challenge the reasonableness of the fees sought. See Duncan v. Duncan, 642 So. 2d 1167 (Fla. 4th DCA 1994).

In light of the foregoing, it is always important to keep in mind how seeking fees is not the same as actually being awarded those fees. Unless both parties come to a mutual agreement on the subject, it will be up to the Court to make a determination on whether a party is entitled to fees in the first place and, if so, to then determine the amount of the fee award. Generally, the greater the income disparity, the greater the likelihood of a fee award.

Ultimately, since the proceedings under Chapter 61 are in equity and governed by basic rules of fairness as opposed to the strict rule of law, Courts have wide discretion in awarding reasonable and necessary fees and may therefore consider additional factors necessary to provide justice and ensure equity between the parties. See Schneider v. Schneider, 32 So. 3d 151 (Fla. 4th DCA 2010) (quoting Rosen v. Rosen, 696 So. 2d 697 (Fla. 1997)).