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Florida Statute § 61.16 authorizes courts to award attorney's fees "after considering the financial resources of both parties." Section 61.16 permits a court to award only a "reasonable amount of attorney's fees." This reasonableness requirement applies to both attorney's fees and costs associated with litigation during a divorce. The critical issue for the court is whether the spouse seeking attorney's fees has a financial need and whether the other spouse has an ability to pay. See Robbie v. Robbie, 591 So. 2d 1006, 1009 (Fla. 4th DCA 1991). Although need and ability to pay are primary considerations, Florida courts nevertheless have broad discretion to do "equity," or what is fair, under section 61.16.
The Florida Supreme Court's decision of Rosen v. Rosen, 696 So. 2d 697 (Fla. 1997) is a frequently cited case when considering whether to award attorney's fees in a divorce proceeding. Under Rosen, when considering a request for attorney's fees under section 61.16, Florida courts should liberally, not restrictively, construe the statute to allow "consideration of any factor necessary to provide justice and ensure equity between the parties." Id. Rosen instructs courts to consider such factors as (i) the scope and history of the litigation between spouses; (ii) the duration of the litigation; (iii) the merits of the parties' legal positions; (iv) whether one party's legal position is intended to harass, frustrate or delay another party; and (v) the existence of prior or pending claims.
The reasonableness of the attorney's fees is yet another factor a court must consider in deciding whether to award fees in a divorce proceeding. See Duncan v. Duncan, 642 So. 2d 1167 (Fla. 4th DCA 1994). In deciding whether fees are reasonable, the trial court must give opposing spouse an opportunity to challenge the reasonableness of the fees. Id. at 1169. This may be accomplished by a trial court conducting an evidentiary hearing where evidence is presented on whether the attorney's fees and costs incurred were for a reasonable value.
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