Family law fees - the high points and the current state of the law.

• Author: Sessums, Mark A.
• Position: Florida

The award of fees in family law matters is a rapidly evolving legal issue. Much has changed, although admittedly much remains the same. Currently, it is an awareness of the nuances in the law that make the difference. Although need and ability to pay are always the starting point in fee shifting matters, this mantra does not resolve all issues. It is the nuances that this overview seeks to impart. By mastering these nuances, the practitioner will advance the client's cause in recovering or defending against fee awards, and, in the process, the practitioner will enhance the ability to collect a reasonable fee from the opposing party and from the practitioner's own client.

Results Really Do Matter

Remember James Fox Miller's insightful columns on fees way back in 1991? The essential theme of the two columns was that billable hours are the curse of the legal profession. Mr. Miller reasoned that billable hours are a curse because they create a misdirected focus on how many hours are put into a matter, rather than the fact that it is what is put into each hour that really matters.

Last year, the Florida Supreme Court, in Rosen v. Rosen, 696 So. 2d 697 (Fla. 1997), came to a similar conclusion. In the most important family law decision since Canakaris v. Canakaris, 382 So. 2d 1197 (Fla. 1980), the Florida Supreme Court in Rosen resolved the conflict in the districts and held that a trial court can use a "results obtained" or "prevailing party" standard in awarding attorneys' fees and costs.[1] The Rosen court ruled that need and ability to pay still are the primary elements in determining entitlement to, and the amount of, any attorneys' fees and costs award in Florida. Having said that, however, the Florida court ruled that all relevant circumstances are to be considered by the trial court in awarding fees and costs pursuant to F.S. [sections] 61.16,[2] inclusive of:

the scope and history of the litigation; the duration of the litigation; the merits of the respective positions; whether the litigation is brought or maintained primarily to harass (or whether a defense is raised mainly to frustrate or stall); and the existence and course of prior or pending litigation.[3]

In awarding fees in family law matters, the trial court first is to determine the lodestar, or the reasonable number of hours times the reasonable hourly rate, as a starting point in determining a reasonable fee.[4] Then, the trial court is to consider all the circumstances surrounding the suit in determining the ultimate award of fees pursuant to F.S. [sections] 61.16.[5] If the action is frivolous, the request for fees may be denied altogether.[6] The Florida Supreme Court emphasized that trial judges would have "wide leeway to work equity" in awarding fees in family law cases.[7]

Obviously, Rosen is of immense import. The family law practitioner who best serves his or her client will be even more mindful of the trial judge's ability to assess the overall reasonableness of the fee request at the conclusion of the case. The case, therefore, should be quickly assessed, settlement offers should be made quickly, and the efficacy of discovery should be considered at the onset, all with this standard in mind. The party with the greater financial resources should be even more mindful of this standard, and seek to minimize the client's exposure to fees by streamlining the litigation, and searching for methods to resolve the case without undue expense.

Rosen is simply another aspect of the trend in family law matters which seeks to reduce unnecessary...