A party many times cannot understand why they have to pay attorney’s fees to the other side in a family law matter. As previously stated in blogs on this website, there are ways on a dissolution action or any other action and under Chapter 61 that makes it equitable for a party to pay attorney’s fees. We may not like it, but it is in the law. Many times, however, one party goes crazy with the litigation. They basically fly off the handle and are not reasonable because they believe the other side will have to pay the attorney’s fees anyway. This is called “vexatious litigation”. A party’s behavior may be used to limit/reduce the fees requested or support an award of fees. Pursuant to §61.16 Florida Statutes the Court may not award fees, suit money or costs to a non-compliant party. The Court may consider violations of Court Orders as the basis for limiting or denying a fee award regardless of need and ability to pay. A party’s financial circumstances should not shield them from paying their own fees and possibly the other party’s fees when having engaged in frivolous litigation.
Attorney’s fees may be awarded as a punitive measure where a spouse in a domestic relations case institutes frivolous non-meritorious claims that contribute to unnecessary legal expenses, costs and a delay of their proceedings. The Court has inherent authority to sanction a party for bad faith litigation. Fees may be assessed against an attorney for litigating in bad faith. The Court must make an express finding of bad faith conduct and provide the attorney with an opportunity to be heard to present witnesses and other evidence. In that event, expert testimony as to the reasonableness of the requested fees is required. The amount of attorney’s fees awarded must directly relate to the specific bad faith conduct of the attorney. However, trial court’s bad faith fee award can be reversed where the sole basis for the fee award was the husband’s voluntary withdrawal of his Petition for Modification.
Although §61.106 Florida Statutes provides that expert testimony is not required to support an award of attorney’s fees and costs, such an award still requires an evidentiary basis. In this case, there was no evidence presented to support the award of the fees and costs of the trial court. There is also Florida Statute 57.105. It is appropriate for a party to seek fees under §57.105 when: (1) upon Court’s initiative or that of a party; (2) fees shall be assessed in equal amounts against losing party and counsel if either knew or should have known that claim was not supported by material facts or claim would not be supported by application of law to material facts (however, counsel is not liable if acted in good faith and relied upon client re: existence of material facts; and fees, not to be assessed if challenged to existing law is brought in good faith); (3) stalling/harassing litigation tactics proven by preponderance of the evidence – fees shall be assessed; (4) parties seeking 57.105 fees must send a draft Motion (warning) to other side requesting that they withdraw their claim, defense, etc. within 21 days – if not withdrawn within 21 days, Motion may then be filed and presented to the Court for adjudication.
Kenny Leigh & Associates is a law firm that exclusively represents men throughout the State of Florida. If you have more questions got to www.divorcemenonly.com.
