Family Law Tip of the Day: Just because your spouse controls the finances does not necessarily mean you cannot hire your own lawyer. In some Florida divorce cases, a court may require one spouse to contribute toward the other spouse's attorney's fees and litigation costs.
When one spouse earns substantially more, controls the household accounts, or has greater access to financial resources, the other spouse may feel financially outmatched before the divorce case even begins.
Florida Statute § 61.16 is designed to address that kind of imbalance.
What Does Florida Statute § 61.16 Do?
Florida Statute § 61.16 allows a court, after considering the financial resources of both parties, to order one party to pay a reasonable amount toward the other party's attorney's fees, suit money, and costs in certain family law proceedings.
The purpose is not simply to punish the spouse who earns more money.
The broader goal is to help prevent one party from having an overwhelming litigation advantage simply because that person controls or has greater access to financial resources.
What If One Spouse Controls All of the Money?
This issue often comes up in marriages where one spouse has historically handled most or all of the finances.
For example, one spouse may control:
- checking and savings accounts;
- investment accounts;
- business income;
- access to credit;
- tax information;
- retirement accounts; or
- major household financial decisions.
The other spouse may have limited access to cash and may be worried that they cannot afford to retain a divorce attorney.
That does not necessarily mean they are without options.
Section 61.16 gives the court a way to examine the parties' financial circumstances and determine whether a contribution toward attorney's fees is appropriate.
Need and Ability to Pay Are Central Issues
In Florida, the core considerations in many attorney's fee requests are the requesting party's financial need and the other party's ability to pay.
That does not mean the higher-earning spouse automatically pays the other spouse's entire legal bill.
It also does not mean that a spouse must be completely broke before requesting assistance with attorney's fees.
The court looks at the financial picture as a whole.
A Difference in Income Can Matter, But Income Is Not the Only Factor
People sometimes reduce attorney's fee disputes to a simple comparison:
“My spouse makes more than I do, so my spouse has to pay my attorney.”
That is not how the analysis works.
The court may consider the parties' overall financial circumstances, including:
- income;
- savings;
- investment accounts;
- retirement assets;
- debts;
- support obligations;
- assets awarded through equitable distribution;
- liquidity of assets; and
- other financial resources available to each party.
So while an income disparity may be important, the court is not necessarily looking at salary alone.
The bigger question is whether one party has a substantially greater ability to fund the litigation than the other.
You Do Not Necessarily Have to Be Penniless
Another common misconception is that attorney's fees are only available if one spouse has no money at all.
That is too narrow.
A spouse may have some assets or some income and still be at a significant financial disadvantage.
For example, one spouse may be able to pay legal fees comfortably from income or liquid assets, while the other would have to exhaust savings or significantly reduce assets needed for ordinary living expenses just to participate in the case.
Those differences can matter.
The Court May Consider the Overall Litigation
Financial circumstances are central, but they are not necessarily the only consideration.
Florida courts may also consider the broader history and circumstances of the litigation, including matters such as:
- the scope of the case;
- how long the litigation has continued;
- the parties' respective positions;
- whether claims or defenses appear to have been used primarily to delay or harass; and
- other related litigation between the parties.
That means § 61.16 is not simply a mathematical formula.
The court retains discretion to evaluate the overall fairness of the circumstances.
The Attorney's Fees Still Have to Be Reasonable
Even if a court determines that one spouse should contribute toward the other spouse's attorney's fees, that does not automatically mean every dollar billed will be shifted.
The fees sought must still be reasonable.
The court may examine issues such as:
- the amount of time spent;
- the hourly rate;
- the work performed;
- whether the work was necessary; and
- whether the legal services were reasonably incurred.
The amount ultimately awarded may be all, some, or none of the requested fees depending on the facts of the case.
Attorney's Fees Can Be Addressed Before the Divorce Is Over
This is an important practical point.
A spouse who is financially disadvantaged may need help paying a lawyer during the divorce, not months later after the case is finished.
Florida law allows attorney's fee issues to be addressed while the case is pending in appropriate circumstances.
That matters because the purpose of fee shifting would be limited if the financially weaker spouse had to go through the entire case without meaningful representation before the issue could ever be addressed.
What If You Already Paid Your Attorney?
Sometimes a spouse manages to hire a lawyer by using savings, borrowing money, or receiving financial help from family.
That does not necessarily end the attorney's fee issue.
The fact that legal fees have already been paid does not automatically mean that a contribution from the other spouse is unavailable.
However, the source of those funds may matter.
Loans, gifts, recurring support, and other financial assistance can affect the analysis depending on the circumstances.
Why § 61.16 Matters in Financially Unequal Divorces
Financial disparity can affect much more than who pays the bills.
It can affect a party's ability to:
- retain experienced counsel;
- participate in discovery;
- review financial records;
- retain experts;
- prepare for mediation;
- take depositions; and
- meaningfully prepare for trial.
If one spouse has substantially greater access to money, the litigation can become uneven very quickly.
Section 61.16 gives Florida courts a mechanism to evaluate that imbalance and determine whether a contribution toward attorney's fees is appropriate.
Do Not Assume Your Spouse's Financial Control Means You Cannot Hire a Lawyer
A common fear at the beginning of a divorce is:
“My spouse controls all the money, so I cannot afford an attorney.”
That concern is understandable.
But financial control by one spouse does not necessarily mean the other spouse must proceed without legal representation.
Florida Statute § 61.16 gives courts the ability to examine the parties' financial resources and, in appropriate circumstances, require one spouse to contribute toward the other spouse's reasonable attorney's fees and costs.
Whether that will happen depends on the specific facts and financial circumstances of the case.
Tampa Divorce Attorney for Financially Unequal Divorce Cases
Cigar City Law, PLLC represents clients in Tampa and throughout the Tampa Bay area in Florida divorce and family law matters involving attorney's fees, financial disparities, equitable distribution, support, and other financial issues.
When one spouse controls the money or has substantially greater financial resources, understanding how Florida law addresses attorney's fees can be an important part of evaluating the divorce process.
This article is for general informational purposes only. It is not legal advice and does not create an attorney-client relationship. Attorney's fee awards under Florida Statute § 61.16 depend on the specific facts, evidence, and circumstances of each case.