The filing fee to initiate a divorce in Florida is $409.00. The Clerk of Court will also charge $10.00 to issue the summons so that a licensed process server or a deputy will serve process on the opposing party. The summons is required unless the other party files a waiver and acceptance of service. As for the cost of the process server, it depends on who is utilized. A private company will typically charge about $30.00 if service of process is local, while the sheriff’s office normally charges $40.00. Based on the above, when you see law firms advertising online or signs on the street corners advertising that a divorce will only cost you $399.00, please do not fall for this gimmick. The filing fees and costs alone to initiate a divorce will be about $449.00.
If you already obtained a divorce and are either seeking a modification or the enforcement of the Final Judgment of Dissolution of Marriage, then the filing fee will be about $50.00. If you are filing a supplemental petition for modification, then you will need a summons and to have it served on the other party. On the other hand, if you are filing a motion for contempt or to enforce the final judgment, then a summons will not be needed. However, it is prudent to have the motion served by a licensed process server on the opposing party.
Retainer and Hourly Fee Structure
The dissolution of a marriage or a post-judgment enforcement matter can become a significant financial undertaking for any party. Although the cost of retaining an attorney may seem high, you should look at it as an investment. In other words, you need to look at the big picture and the overall savings you are making by having a knowledgeable and effective lawyer represent you. During a divorce, an attorney may be able to help you avoid making uninformed decisions that may substantially impact your financial circumstances.
In South Florida, attorneys normally bill by the hour and require an initial lump sum retainer. An individual who is seeking a divorce retains counsel by depositing, e.g., $5,000.00, with his or her attorney. As the attorney represents the party during the divorce proceedings, the attorney’s time is billed to the client and deducted from the $5,000.00 that was deposited as a retainer. If the retainer is depleted before the end of a case as a result of the services provided, then the client will be asked to replenish the retainer. Depending on the complexity and circumstance of the case, the attorney may require that the client replenish the entire retainer once it is depleted. This will depend on the law firm or attorney. With respect to the filing fees, subpoenas, court reporter and transcript fees, process server fees, and copies and out of pocket costs pertaining to your case will be billed separately from the attorney’s fees.
The hourly rate billed by an attorney is based on a number of factors, such as the attorney’s experience, region, and the local market’s demand and desirability for a particular attorney (make sure you do your research or ask around about the attorney you are thinking about retaining because not all attorney’s are the same in terms of the quality of work, reliability and dedication). In South Florida, a divorce and family law attorney’s hourly rate will range from $750 per hour on the very high end to $200 per hour on the low end. Again, you really need to do your research or due diligence before retaining any lawyer because the attorney who charges $400 per hour may provide a superior level of service to a client than an attorney who bills out at $750 per hour.
At no time does an attorney’s fees during a divorce or family law case become contingent on the outcome. All fee agreements and contracts must be in writing. Although the attorney may be familiar with the process and knowledgeable of the law, there are still other variables that are beyond his or her control. When you enter into a written agreement with your attorney, except in flat fee contracts, you are agreeing to pay for the attorney’s time, which includes the attorney’s time in preparing or drafting pleadings and motions, appearing in court, communicating with you as well as on your behalf to the opposing counsel. Additionally, attorneys typically employ and bill out their paralegals to assist them in a client’s case in order to save the client money.
It is also important to consider that an attorney will withdraw from your case if you do not pay his or her fees when they are due.
Flat Fee Structure
In specific circumstances, an attorney may represent a client on his or her divorce or family law case for a flat fee. However, this is not the norm in a contested divorce or family law case because of the significant amount of time those cases may require from the attorney. In comparison, a simplified dissolution of marriage case maybe one of those cases where an attorney may charge a flat fee.
Experts’ Fees Not Included Under Attorney’s Fees
If your divorce or family law case requires that your attorney use an expert, i.e., a forensic accountant, forensic economist, appraiser, vocation expert, etc., it is customary that the client will be required to pay for the expert’s services separately. Divorce cases involving large marital estates and business owners will require experts unless the parties have already reached an agreement.
Award of Fees to a Spouse
Many South Florida residents are hesitant to file for divorce because the disparity in financial resources between spouses makes it difficult for the married partner with less financial resources to afford comparable legal representation. However, Fla. Stat. Sec. 61.16 is designed to address this potential barrier to obtaining legal representation in a Florida marital dissolution (divorce) case. This provision directs a court to analyze a number of factors when determining whether the higher earning spouse should contribute to the attorney fees of the lower earning spouse’s attorney’s fees in divorce proceedings as well as post-judgment proceedings including appeals.
When there is significant disparity in the income between the parties, a Florida judge in a divorce case may order the spouse with the higher income to make periodic payments directly to the other spouse’s attorney to cover attorney fees based on the paying spouse’s ability to pay and the recipient spouse’s financial need. The purpose of this statute is to ensure the ability of the financially disadvantaged spouse to obtain legal representation in a Florida divorce proceeding. While a disparity in income is not the exclusive criteria, the ability to pay by one spouse and financial need of the other spouse are the key considerations.
When a court orders one spouse to make a contribution to the other spouse’s attorneys’ fees in a divorce proceeding, the court must make factual findings to justify both the amount of the award as well as the payment terms. Factors that a court may consider when considering an advance of attorneys’ fees by one spouse on behalf of the other include the following:
- Higher earning spouse’s ability to pay
- Financially disadvantaged spouse’s need
- History of the litigation
- Merits of each spouse’s position
- Whether the party seeking fees has engaged in vexatious litigation
This means that while the relative financial position of the parties to a divorce is the key factor in making interim awards of attorneys’ fees to the other spouse, the court may also consider the merits of particular motions or proceedings for which attorney fees are sought. When a motion or hearing is brought, which is frivolous and/or primarily intended to harass the other party, the court may deny an attorney fee advance to the other spouse despite the relative financial positions of the parties.
Consider the following examples:
Example 1: A mother refuses to comply with parenting plan orders in a divorce decree so the father brings a motion to modify the parenting plan. The husband makes several times more than the mother. The court may still deny a request for attorney fees by the mother because of her actions designed to frustrate the father’s custodial time under the divorce decree.
Example 2: Wife brings a modification proceeding to increase alimony but fails to assert a change in circumstances. The court may deny the wife an attorney fee request because the motion is essentially frivolous given that a change of circumstances is a legal requirement for a modification of alimony.
The jurisdiction of the court to award attorney fees does not terminate after a judgment of divorce. The court can continue to order attorney fee advances for post-judgment enforcement proceedings for contempt or appeals.
Where the litigation process is abused to harass the other party or to bring motions and claims that are without merit, the court may also award attorney fees in the form of sanctions. Fla. Stat. 57.105(1) provides that an award of attorney fees is appropriate when:
“The losing party or the losing party’s attorney knew or should have known that a claim or defense when initially presented to the court or at any time before trial:
- Was not supported by the material facts necessary to establish the claim or defense; or
- Would not be supported by the application of then existing law to those material facts.”
Ultimately, the goal of the court is to ensure that the resolution of divorce proceedings is not simply a factor of who has the financial resources to afford effective legal representation. Florida law governing attorney’s fees in a Florida divorce are intended to level the playing field by ensuring that both parties have sufficient resources to retain effective legal representation. This means that even if your spouse has exercised primary financial control of your family finances as the primary breadwinner, you need not feel that you cannot seek a divorce. The court will typically help you obtain assistance in paying for attorney’s fees on a periodic basis, especially where there is a substantial disparity in income. If you are the higher wage earner, by contrast, you are protected from paying for frivolous motions brought for the purpose of harassment.
We are loyal and passionate about our clients’ cases and consistently seek the best possible resolution to their family law matters. We bring a substantial level of skill, knowledge and diligence along with the ability to think outside of the box so that we can be the most effective advocates for our clients.
The Law Offices of James S. Cunha, P.A. assist clients in all Divorce and Family Law Matters throughout West Palm Beach, Lake Worth, Palm Beach, Palm Beach Gardens, Boynton Beach, Jupiter, Delray Beach, and Boca Raton in Palm Beach County. We also offer legal representation to clients who reside in Martin, St. Lucie, Okeechobee, Hendry, Broward, and Miami-Dade counties.