In a Florida divorce proceeding, courts agree that when considering whether to award attorney’s fees “need and ability to pay” is the primary consideration by the court. The purpose of the fee statute, Fla. Stat. § 61.16, is to insure that both spouses in a divorce proceeding will have a similar ability to obtain competent legal counsel. The Florida Supreme Court addressed the issue of need versus the ability to pay in Canakaris v. Canakaris, 382 So. 2d 1197 (Fla. 1980). In Canakaris, the court held that “it is not necessary that one spouse be completely unable to pay attorney’s fees in order for the trial court to require the other spouse to pay [attorney’s] fees.” Id. The purpose of awarding a spouse attorney’s fees is to insure the spouse with greater financial resources does not gain an unfair advantage over the spouse with less financial resources. See Nichols v. Nichols, 519 So. 2d 620 (Fla. 1988).
The court’s analysis of the parties’ need versus ability to pay attorney’s fees remains the same regardless of whether a party is seeking fees on a temporary or final basis. See Pedraja v. Garcia, 667 So. 2d 461 (Fla. 4th DCA 1996). Florida courts sometimes differ in how they assess a party’s need for attorney’s fees. By that, some district courts of appeal require the party requesting fees to demonstrate an actual need for fees. Other districts, however, look at the relative difference in resources between the parties.
Satter v. Satter, 709 So. 2d 617 (Fla. 4th DCA 1998) is an example where the court focused more on the actual need of the requesting spouse versus the relative financial positions of the parties in deciding whether a spouse established a need for attorney’s fees. In Satter, the Fourth District denied a wife’s request for attorney’s fees based upon a lack of need. The court in Satter noted that the wife requesting fees had a net worth of $1.1 million, yet the husband had a net worth of at least $13 million. In contrast, the Fifth District in Kelly v. Kelly, 925 So.2d 364 (Fla. 5th DCA 2006) applied a different approach when addressing a spouse’s need for attorney’s fees. In Kelly, the court focused on the requesting spouse’s relative financial condition compared to the paying spouse. On appeal, the Kelly court found that it was error for the trial court to deny attorney’s fees where the husband was in a vastly superior financial position when compared to the wife.
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