Attorney’s Fees Awarded Pursuant to Florida Statute 57.105

Florida law provides that in a dissolution of marriage proceeding, both the husband and wife are entitled to be on an “even playing field.” What this means is that the spouse who controls the family finances and who earns the higher income, frequently is required to pay for the legal fees and expenses of the other spouse. This is frequently referred to as the “need versus the ability to pay” standard.

This is not however, the only standard utilized by the courts when awarding attorney’s fees and costs. Florida Statute 57.105 is becoming a tool frequently utilzed by the courts to impose sanctions by awarding attorney’s fees, when appropriate.

Section 57.105(1) provides that the award of attorney’s fees are 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:

(a) Was not supported by the material facts necessary to establish the claim or defense; or
(b) Would not be supported by the application of then existing law to those material facts.

Sullivan v. Sullivan, 35 Fla. L. Weekly D2896a, decided on December 22, 2010, is instructive on this concept. In the Sullivan case, the former husband was found in civil contempt for various issues arising under the final judgment. He never took an appeal on those findings. Subsequent hearings were held, and he argued that the reason he did not pay his former wife, as ordered by the court, was that he deposited funds into an LLC account, and it was the LLC who should pay, not him.

The former husband controlled the funds and had exclusive control of the LLC. The appellate court viewed this factual situation as one falling squarely within the confines of Florida Statute 57.105 and awarded attorney’s fees, to be shared equally by the former husband and his lawyer.