In some circumstances, one party may recover some or all of their attorney fees from the other party. One way this happens is if one party has a need for an award of attorney fees and the other party has an ability to pay. The ability to pay can be based upon greater income or assets, including non-marital assets. However, the court must take into account whatever income transfers are taking place as the result of the divorce. For example, one party may be substantially employed with a high income, but also have the obligation to pay alimony and child support. As a result, after considering the effects of these payments, there may no longer be the ability to pay attorney fees, or no longer a need by the party requesting attorney fees.
Another way attorney fees may be recovered is if one party makes outrageous demands and litigates in an unreasonable manner. If the litigation is made more expensive as a result of such unreasonable conduct, the court could award attorney fees that were needlessly incurred.
This is an important area of the law with many nuances. Unfortunately, sometimes a spouse with the greater financial ability will intentionally (as a tactic) go to court more than necessary, causing unnecessary attorney fees in a misguided effort to compel the other party to accept unfavorable settlement terms. Mr. Criscuolo, Board Certified in Marital & Family Law by the Florida Bar, is an expert in this area of the law.