In all honesty, a divorce can be expensive. Clients often ask me for for guidance as they plan for the financial cost of their divorce. I read a report that estimated the average cost of a contested divorce to be $15,000, per party. Based upon 13 years of experience, I would say that is an accurate figure for a contested divorce in Florida. Uncontested divorces can be a fraction of that cost (like a 1/10 fraction). Money is tight enough with the parties taking on all of the household bills that were previously shared, so uncontested divorces are always preferred. However, for various reasons, the parties are often unable to reach an agreement and file the divorce as an uncontested case.
How will these parties, who are already strapped for cash as they go about setting up separate households, pay the fee for legal services? And how will they pay for litigation costs, such as filing fees and depositions and the normal costs of a diligent representation? How much time will you need to take off from work in order to litigate the case, and what will that cost? There is no consistent answer to these questions. Some of my clients clients simply pay with stored away cash. Others borrow money from relatives, put the fees and costs on credit cards or have relatives front the costs. However, if none of these options are available, can you force your spouse to pay for a contested divorce?
In Florida, attorney’s fees cannot be awarded unless authorized by statute or agreement of the parties. Section 61.16, Florida Statutes, governs the apportionment of attorneys fees and costs in divorce cases. It states, in part:
“(1) The 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….”
This provision is designed to ensure that both parties have a similar ability to obtain fair representation for their divorce. This requires a two-step analysis. First, Florida judges must consider the financial resources of the party requesting attorney’s fees as they determine whether there is a need to award attorney’s fees. If a need exists, the court will proceed to the next step. Secondly, the court will consider whether the other party has an actual ability to pay an attorney fee award. If the requesting party meets both of these tests, he or she may be able to obtain attorney’s fees and costs from your spouse and force them to pay for a contested divorce.
Attorney’s fees and costs can be awarded at any point in the case. The court can award suit monies to finance ongoing litigation at any point during the case, or the court can award attorney’s fees and costs at the end of the case. In either event, you will likely have to pay for the cost of the divorce until such time as a judge forces the other party to pay your attorney’s fees and costs.