What happens when the parties are not in an equal financial position? As contingency fees are not available in family law, how can a spouse with few assets or little income retain the professionals?In Canada, the answer is found in the Family Law Rules, which say:
A Court can make an order that a party pay an amount of money to another party to cover part or all of the expenses of carrying on the case, including lawyer’s fees.The test before interim disbursements may be granted is to show that the case cannot proceed unless the funds are granted. In addition, the party must show that their position is sufficiently meritorious to warrant pursuit, and that special circumstances exist to allow the Court to exercise this extraordinary remedy.
Florida Attorneys’ FeesCosts can be high in divorce in Florida too. One way to level the playing field of high divorce costs in Florida is to ask one side to pay for attorneys’ fees. In Florida attorney’s fees may be awarded in a divorce, including enforcement and modification proceedings, separate maintenance, custody and support proceedings and appellate proceedings.
The court may from time to time, after considering the financial resources of both parties, order a party to pay a reasonable amount for attorney’s fees, suit money, and the cost to the other party of maintaining or defending any proceeding.I’ve written about reducing attorneys’ fees through various means before. The purpose of awarding attorneys’ fees is to make certain that both parties in a divorce proceeding “will have similar ability to secure competent legal counsel.” There are also fees for frivolous cases. A reasonable attorney’s fee can also be awarded to the prevailing party if the court finds that someone brought a claim that was not supported by the material facts the then existing law to those material facts.
Leveling the Playing FieldWhile temporary attorneys’ fees may sound like a windfall for the recipient spouse, in many complex matters, one spouse alone may spend $50,000 or more on experts’ fees, with legal fees being in excess of that amount in a divorce. When making an order for interim disbursement, the court has discretion to decide both when the payment must be made by the wealthier spouse, and the way in which a payment will be accounted for.
Often in Canada, the payment is advanced against a future equalization (property) payment owing by the wealthier spouse. In many cases, it is clear early in the litigation that a property payment is owing — the only issue is “how much.”Courts also have the discretion to order that the payment of attorneys’ fees be advanced as a loan to the recipient spouse, or on account of spousal support. And sometimes, a court will simply order payment to be “uncharacterized,” meaning that whether or how the payor is credited will be determined in the future by the trial judge. The Financial Post article is here.