ATTORNEY’S FEES IN MARITAL AND FAMILY LAW CASESAND FAMILY LAW CASES

By:By:Charles Fox Miller, Esq.

and Natascha Maria Aabbott, Esq.

BECAUSEBECAUSE . . .

“A LAWYER UNPAIDA LAWYER UNPAID IS JUSTICE DENIED”

WHAT SHOULD MY RETAINER AGREEMENT INCLUDE?AGREEMENT INCLUDE?

• The attorney’s fixed hourly rate

• A clear explanation of the attorney’s right and intent to claim a charging lien on the judgment in the event of non-paymentpayment

• A provision requiring the client to object to each billingto object to each billing statement within a specified amount of time, or waive any objection to the time billed

ADDITIONAL TIPS FOR FEE AGREEMENTSAGREEMENTS

• Bonus provisions are void. However non refundableHowever, non-refundable retainers are permissible. See King v. Young et al., 709 So.2d 572 (Fla. 3rd DCA 1998)1998).

• Contingency contracts are not allowed in domestic relationsallowed in domestic relations matters, the payment or amount of which is contingent upon the securing of a divorce or upon the amount of alimonyor upon the amount of alimony or support, or property settlement in lieu thereof. See R. Regulating Fla. Bar 4-1 51.5.

COLLECTING FEES FROM MY CLIENT: THE USE OF CHARGING LIENS

• Charging liens attach to g gyour client’s litigation proceeds, but not to alimony or child supportalimony or child support

• They can also apply toThey can also apply to settlement proceeds (even where settlement was reached withoutwas reached without assistance of counsel)

TO PERFECT YOUR CHARGING LIEN YOU MUST SHOWLIEN YOU MUST SHOW:

1. the existence of a valid fee agreementagreement

2. An understanding between the client and yourself that, in the y ,event of non-payment, payment will come from any recovery or litigation proceeds

3. Avoidance of payment by the client OR dispute as to the amount of fees owed

4. Timely notice (of intent to file charging lien and of opportunity to be heard)pp y )

ATTORNEY’S FEES AND HOMESTEADHOMESTEAD

• Homestead cannot be waived by contract. ySee DeMayo v. Chames, 972 So.2d 850 (Fla. 2007)

CAN I COLLECT MY FEES FROM THE OTHER SIDE?THE OTHER SIDE?

Yes, if permitted by:

• Statute

f• Principles of equity or

• Contract (i e a prevailing• Contract (i.e. a prevailing party provision)

BY STATUTE, FEES ARE AVAILABLE IN:BY STATUTE, FEES ARE AVAILABLE IN:

• Dissolution of marriage proceedingsproceedings

• Separate maintenance proceedings

• Custody, support, enforcement, and modification proceedings brought pursuant to Chapter 61 of the Florida Statutesthe Florida Statutes

• Paternity proceedings

• Rule 1.540 proceedings

• Paternity cases

BUT THEY ARE UNAVAILABLE IN :BUT THEY ARE UNAVAILABLE IN :

• Domestic violence proceedingsproceedings

• Actions collateral to a divorce, unless closely related

COURTS ALSO HAVE EQUITABLE JURISDICTION TO AWARD ATTORNEY’SJURISDICTION TO AWARD ATTORNEY S

FEES• There is NO statutory y

basis for awarding temporary fees in annulment actionsannulment actions

• However the courts• However, the courts have equitable jurisdiction to order such relief, independent of the statutesstatutes

FEE AWARDS VIA PREVAILING PARTY AGREEMENTSPARTY AGREEMENTS

• A provision in an agreement stating• A provision in an agreement stating that the prevailing party to an action is entitled to his/her fees from the losing party governs

• A prevailing party provision concerning litigation over the validity of the agreement is also enforceable. SeeLashkajani v. Lashkajani, 911 So.2d 1154 (Fla. 2005).( )

• In such cases, the court should disregard the need v. ability to pay analysis. See Davids v. Davids, 718 So 2d 1263 (Fla 2nd DCA 1998);So.2d 1263 (Fla. 2nd DCA 1998); Ulbrich v. Coolidge, 935 So.2d 607 (Fla. 4th DCA 2006).

ATTORNEY’S FEES: PLEADING REQUIREMENTSPLEADING REQUIREMENTS

• Attorney’s fees MUSTbe pled to be received

• Therefore, if your li t i ki fclient is seeking fees,

make sure to include a provision for fees in a p o s o o eesyour petition, counterpetition, and/or answerand/or answer

NEED AND ABILITY- BASED ATTORNEY’S FEES AWARDSATTORNEY’S FEES AWARDS

• Courts award attorney’s fees h ito ensure that parties are on

relatively equal footing in their ability to secure legal counsel. See Canakaris v.counsel. See Canakaris v. Canakaris, 382 So.2d 1197 (Fla. 1980); Nichols v. Nichols, 519 So.2d 620 (Fla. 1988)1988).

• In so doing, the courts primarily consider the parties’primarily consider the parties need and ability to pay. SeeRosen v. Rosen, 696 So.2d 697 (Fla. 1997).( )

OTHER ROSEN FACTORS CONSIDERED IN AWARDING ATTORNEY’S FEESIN AWARDING ATTORNEY S FEES

• Scope and history of the litigationlitigation

• Duration of litigation

• Merits of the respective positions

• Harassment

• Existence of prior and pending claims

WHAT IS “NEED”?WHAT IS NEED ?Relative Need

• A party in “relative need” is in an inferior financial position, but is entitled to fees regardless of their “actual need.”

• 3rd & 4th DCAs

Actual Need

• A party in “actual need” cannot afford the services of adequate counsel withoutservices of adequate counsel without depleting marital assets, alimony, and/or income used for general living expenses

• 1st 2nd 4th & 5th DCAs• 1 , 2 , 4 , & 5 DCAs

WHAT IS “ABILITY TO PAY”?WHAT IS ABILITY TO PAY ?• Based upon all financial resources

available to a party, including:

– Income

– Assets (marital and non-marital)– Assets (marital and non-marital)

• Whether the asset is liquid or not is irrelevant. See Emmel v. Emmel, 617 So 2d 282 (Fla 5th DCA617 So.2d 282 (Fla. 5th DCA 1996).

– Regular, historic, continuous gift i S O di i O di i 701income. See Ordini v. Ordini, 701 So.2d 663 (Fla. 4th DCA 1997).

SECURING FEES FROM OPPOSING COUNSELOPPOSING COUNSEL

• Courts have the inherent ’power to assess attorney’s

fees against counsel as sanctions for litigating in bad faith upon specific findingsfaith upon specific findings detailing actions and conduct of counsel taken in bad faith.See Diaz v. Diaz, 826 So.2d 229 (Fl 2002)229 (Fla. 2002).

• However, pursuit of “long shot” claims cannot form the basisclaims cannot form the basis for assessing attorney’s fees against attorneys under the inherent authority doctrine. Id.y

ENFORCING FEE AWARDS BY CONTEMPTCONTEMPT

• Fees awarded pursuant to pChapter 61 are in the nature of support and are, therefore enforceable bytherefore, enforceable by contempt

• This includes enforcement of a money judgment for fees See Robbie vfees. See Robbie v. Robbie, 683 So.2d 1131 (Fla. 4th DCA 1996).

FEE AWARDS MAY NOT BE ENFORCED BY OTHER METHODSENFORCED BY OTHER METHODS

• Injunctions – cannot be obtained to secure an attorney’s fee awardto secure an attorney s fee award. See Rinkor v. Brborich, 957 So.2d 661 (Fla. 3rd DCA 2007)

• Continuing Writs of• Continuing Writs of Garnishment - are not available to secure attorney’s fees awards. See Reyf v. Reyf, 620 So.2d 218 (Fla. 3rd DCA 1993)( )

• Income Deduction Orders -cannot be used solely for the payment of attorney’s fees. Seep y ySpalding v. Spalding, 813 So.2d 1078 (Fla. 4th DCA 2002).

PROVING ATTORNEY’S FEESPROVING ATTORNEY S FEESTemporary Fees Final Fees

• Standard: need & ability to pay

• Evidentiary hearing is required

T ti i i d (i l di t ti f

• Standard: need & ability to pay

• Evidentiary hearing is required

T ti i i d (i l di t ti f• Testimony is required (including testimony of counsel)

• Expert testimony is not required

• Testimony is required (including testimony of counsel)

• Expert testimony is not required

• Specific findings are not required as long as there is sufficient evidence in support of the award on the record

*** parties cannot limit or contract away titl t d/ t f t f

• Specific findings are required, including:

– Need & ability to pay

– Reasonable hourly rateentitlement and/or amount of temporary fees in a pre-nuptial or post-nuptial agreement. See Belcher v. Belcher, 271 So.2d 7 (Fla. 1972).

– Number of hours expended, and

– Appropriateness of any enhancement/reduction