In Florida, attorney’s fees for divorce cases can be paid by the more wealthy party on a “need and ability to pay” basis. The Court will consider the equitable distribution between the parties at the end of the case in the calculation of need and ability to pay. A recent case out of the Second District Court of Appeal demonstrates how the Court should make this calculation.
In this case the Husband earned the family’s income, earning $175,000 base salary, $6,000 automobile allowance, and substantial bonuses. The Court resolved alimony and child support awarding the approximately $6,000 a month in various types of support. The Court also resolved equitable distribution awarding both parties over one million dollars in assets. Throughout the case the Husband had voluntarily contributed $20,000 towards the Wife’s attorney’s fees and cost.
At the conclusion of trial both parties requested attorney’s fees. The Husband requested Wife pay his attorney’s fees for her misconduct during the case. The Wife requested the Husband to pay her fees based on her need and his ability to pay. The trial court denied Husband’s request, finding that Wife had caused some unnecessary delay and unnecessary increase in attorney’s fees, but that extenuating circumstances warranted some of this delay. The Trial Court also denied Wife’s motion finding that the parties were in relatively equal financial positions.
The Second District Court of Appeal reversed this decision because the trial court inproperly ignored Husband’s bonus income. It found that while the bonus income was not guaranteed, for thirteen years he had earned a bonus of $74,000. While the appeals court agreed that past income had been divided relatively equally; it found the trial court failed to properly consider future earning capability. Specifically quoting another case
[w]here, as here, the record establishes that the parties’ past, present[,] and anticipated earnings are not substantially equivalent, it may be inequitable to force the lower earning party to deplete her share of the otherwise equally divided assets to pay attorney’s fees” Nisbeth v. Nisbeth, 568 So. 2d 461, 462 (Fla. 3d DCA 1990).
See, DiNardo v. DiNardo, 37 Fla. L. Weekly D323 (Fla. 2nd DCA 2012).
Dustin Michael Butler is an Attorney with Martin Law Firm, P.L., whose practice focuses in Family Law and Civil Litigation. He is admitted to practice law in the State of Florida and the Federal Court for the Middle District of Florida. He primarily practices in Lee County Florida in Cape Coral and Fort Myers, Florida.