When Does a Florida Court Measure Need and Ability to Pay Attorney’s Fees in Florida Family Law Cases?

In Florida family law cases, courts may award attorney’s fees based on the parties’ financial resources. But a critical question is often overlooked:

When does the court measure need and ability to pay?

The answer matters. A party’s financial circumstances may look very different at the beginning of a case, at a temporary relief hearing, at final judgment, during an appeal, or in a later enforcement or modification proceeding.

Florida appellate courts have repeatedly held that courts should not base attorney’s fee awards on speculation about the future. Instead, the court must look at the parties’ financial circumstances at the time of the proceeding in question.

That rule applies in Florida divorce cases under section 61.16, Florida Statutes, and in Florida paternity cases under section 742.045, Florida Statutes.

The Statutory Starting Point: “From Time to Time”

Section 61.16(1), Florida Statutes, provides that in divorce, support, time-sharing, enforcement, modification, and appellate proceedings, the court may “from time to time, after considering the financial resources of both parties,” order one party to pay a reasonable amount for attorney’s fees, suit money, and costs.

Section 742.045, Florida Statutes, uses similar language for paternity cases. It provides that the court may “from time to time, after considering the financial resources of both parties,” order one party to pay reasonable attorney’s fees, suit money, and costs in proceedings under chapter 742, including enforcement and modification proceedings.

The phrase “from time to time” is important. It has been interpreted to mean the court’s fee analysis is temporally tied to the proceeding being litigated and the window for measuring need and ability to pay appears to conclude at the time of the final hearing.

The Core Rule: The Court Looks at the Time of the Proceeding in Question

The earliest statement of the rule comes from Mishoe v. Mishoe, 591 So. 2d 1100 (Fla. 1st DCA 1992).

In Mishoe, the final judgment stated that the husband was not presently able to pay attorney’s fees while unemployed, but the court reserved jurisdiction to consider fees after his reemployment. Later, after the husband became employed, the former wife sought fees for the earlier dissolution proceeding. The First District reversed. The court held that having made this factual finding, any attempt to defer consideration of attorney’s fees into the indefinite future was ineffectual.

The court then stated the timing rule:

“The critical inquiry under § 61.16, Florida Statutes (1989), is the parties’ relative ability to obtain counsel at the time of the proceeding in question.”

Mishoe v. Mishoe, 591 So. 2d 1100, 1101 (Fla. 1st DCA 1992).

That rule is the foundation. A court should not wait to see whether someone becomes richer later. The court must assess the financial circumstances tied to the proceeding for which fees are sought.

In Divorce Cases, Final-Judgment Fees Are Measured at the Time of Dissolution

For attorney’s fees connected to the divorce case itself, Florida courts generally measure need and ability to pay at the time the final judgment dissolving the marriage is entered.

In Duchesneau v. Duchesneau, 692 So. 2d 205 (Fla. 5th DCA 1997), the final judgment reserved jurisdiction to award attorney’s fees in the future, with any fee to be paid from the proceeds of a later sale of the marital residence. The Fifth District reversed because the reservation postponed both entitlement and amount to a future event.

The court explained:

“In dissolution cases, an attorney’s fee award is based on the current relative financial positions of the parties at the time of dissolution when they depart the marriage, not at some unspecified future date.”

Duchesneau v. Duchesneau, 692 So. 2d 205, 207 (Fla. 5th DCA 1997).

That means the court should look at the financial position of the parties as they leave the marriage—not years later, not after a possible sale, not after a possible job change, and not after a speculative future increase (or decrease) in income.

The same rule appears in DiNardo v. DiNardo, 82 So. 3d 1102 (Fla. 2d DCA 2012). There, the Second District stated:

“The trial court should determine the relative financial positions of the parties as of the time of the entry of the final judgment dissolving the marriage.”

DiNardo v. DiNardo, 82 So. 3d 1102, 1106 (Fla. 2d DCA 2012).

So, in a divorce case, if the fee request relates to the litigation through final judgment, the relevant time period is generally the parties’ financial circumstances at the time of the final judgment.

A Court Cannot Defer the Fee Decision Into the Indefinite Future

Florida appellate courts have repeatedly rejected attorney’s fee rulings that postpone the need-and-ability analysis until an uncertain future date.

In Minsky v. Minsky, 779 So. 2d 375 (Fla. 2d DCA 2000), the trial court found that the wife needed help paying fees, but that the husband did not have a present ability to pay. The court then reserved jurisdiction to require the husband to pay fees “if he ever acquires the ability to pay.” The Second District reversed, quoting Mishoe:

“[A]ny attempt to defer consideration of attorney’s fees into the indefinite future was ineffectual,” and the trial court must consider “the parties’ relative ability to obtain counsel at the time of the proceeding in question.”

Minsky v. Minsky, 779 So. 2d 375, 377 (Fla. 2d DCA 2000).

The Fifth District reached the same conclusion in Kemper v. Kemper, 838 So. 2d 1227 (Fla. 5th DCA 2003). There, the trial court deferred consideration of appellate attorney’s fees for twenty-four months because the payor might later recover damages from an automobile accident.

The Fifth District vacated the order, citing Duchesneau and Mishoe, and held that attorney’s fees must be based on the parties’ current relative financial positions, “not at some unspecified future date.” Kemper v. Kemper, 838 So. 2d 1227, 1227 (Fla. 5th DCA 2003).

The point is straightforward: a court may reserve jurisdiction to determine the amount of fees after entitlement has been decided, but it cannot defer the entitlement analysis itself into an indefinite future based on speculation.

Future Earning Prospects Are Not Present Ability to Pay

The Fourth District applied the same timing principle in Derrevere v. Derrevere, 899 So. 2d 1152 (Fla. 4th DCA 2005).

In Derrevere, the trial court found that the parties were financially equal at the time of final judgment, but awarded fees based partly on the husband’s “superior future income prospects.” The Fourth District reversed and stated:

“‘Superior future income prospects does not translate into ability to pay. It suggests speculative increases in earnings, nothing more.”

The court then held:

“At the time of the final judgment, which is the time when the ability to pay must be determined, the parties were financially equal.”

Derrevere v. Derrevere, 899 So. 2d 1152, 1153 (Fla. 4th DCA 2005).

That language is directly tied to the relevant time period. The question is not whether one party might earn more someday. The question is whether, at the time the court is deciding the fee issue for that proceeding, the evidence shows need and ability to pay.

At the End of a Divorce Case, the Court Looks at the Financial Position Created by the Final Judgment

In Rashid v. Rashid, 35 So. 3d 992 (Fla. 5th DCA 2010), the Fifth District stated:

“The need and ability to pay are determined by the trial court at the conclusion of the proceedings.”

Rashid v. Rashid, 35 So. 3d 992, 995 (Fla. 5th DCA 2010), citing Lovell v. Lovell, 14 So. 3d 1111, 1116–17 (Fla. 5th DCA 2009).

For divorce cases, that means the court should consider the parties’ financial circumstances after the final judgment resolves support, property distribution, debts, and other financial issues. The relevant snapshot is the financial reality at the conclusion of the divorce proceeding, not a hypothetical future version of the parties’ finances.

Paternity Cases: The Same Timing Principle Applies, But There Is No “Time of Dissolution”

Paternity cases are different because there is no marriage to dissolve and no “time of dissolution.” But the timing principle is similar.

Section 742.045, Florida Statutes, also uses the phrase “from time to time.” In Jessup v. Werner, 354 So. 3d 605 (Fla. 1st DCA 2022), the First District explained that this language applies to paternity cases and reflects the ongoing nature of fee issues in family cases.

The court stated:

“The statute uses the phrase ‘from time to time,’ which indicates the interlocutory and ongoing nature of the consideration in a dissolution or paternity action.”

Jessup v. Werner, 354 So. 3d 605, 608–09 (Fla. 1st DCA 2022).

The court further explained that section 742.045 contemplates that fee issues should be addressed while the proceeding is ongoing, rather than simply waiting until the end:

“As we already mentioned, the text of section 742.045 anticipates that the trial court would be making these determinations while the proceeding continued, rather than waiting for the close of the case.”

Jessup, 354 So. 3d at 609.

That is the key paternity-case distinction. In a divorce case, final fee issues are often measured at the time of the final judgment dissolving the marriage. In a paternity case, there is no dissolution date, so the better formulation is that the court assesses need and ability at the time of the paternity proceeding in question—whether temporary, final, enforcement, modification, or appellate. The assessment should not be made six months later at a subsequent fee hearing.

Paternity Fee Requests Should Be Measured When the Need Arises or When the Court Decides the Proceeding

For paternity cases, Jessup makes clear that section 742.045 is not designed to postpone the entire fee issue until later if the need arises during the case. The court should consider whether a party needs fees to hire and retain counsel during the paternity proceeding.

The First District stated that the statute required the court to consider whether the requesting party needed money “to hire and retain competent counsel to represent her in the proceeding.” Jessup, 354 So. 3d at 609.

That timing language is important for unmarried parents litigating paternity, parental responsibility, child support, and time-sharing. If a parent needs fees during the case, the request should be brought when the need exists. If the court addresses fees at final judgment, the court should evaluate the party’s financial need and the other party’s ability to pay based on the evidence at that stage of the paternity proceeding.

The Rule Also Applies to Appeals, Enforcement, and Modification Proceedings

Both divorce and paternity fee statutes are proceeding-specific.

For divorce and related chapter 61 proceedings, section 61.16 expressly applies to enforcement, modification, and appeals.

For paternity proceedings, section 742.045 expressly applies to proceedings under chapter 742, including enforcement and modification proceedings. The Fourth District has also held that section 742.045 authorizes appellate fees in paternity cases, conditioned on need and ability to pay. C.T. v. D.T., 216 So. 3d 721, 722 (Fla. 4th DCA 2017).

The same timing concept controls: the court should assess need and ability based on the proceeding for which the fees are sought.

That means:

• Fees for temporary relief are measured based on the circumstances at the temporary-fee stage.

• Fees through final judgment in a divorce are generally measured at the time of final judgment.

• Fees in a paternity case are measured at the time of the paternity proceeding in question.

• Fees in a modification case are measured based on the financial circumstances relevant to the modification proceeding.

• Fees in an enforcement case are measured based on the financial circumstances relevant to the enforcement proceeding.

• Fees on appeal are measured based on the parties’ financial circumstances relevant to the appellate-fee request.

The Bottom Line

The relevant time period for assessing need and ability to pay attorney’s fees in Florida family law depends on the proceeding.

In a divorce case, fees connected to the dissolution case are generally measured at the time of the final judgment dissolving the marriage. The court should look at the parties’ financial positions when they leave the marriage, not at a speculative future date.

In a paternity case, there is no dissolution date. Instead, section 742.045 allows the court to consider fees “from time to time,” and Jessup explains that this reflects the ongoing nature of fee issues in paternity cases. The court should assess need and ability when the fee issue arises or when the court decides the relevant paternity proceeding.

The consistent rule across both divorce and paternity cases is this:

Florida courts should measure need and ability to pay attorney’s fees at the time of the proceeding in question—not at some indefinite future date.

Speak With a Tampa Family Law Attorney About Attorney’s Fees

Mockler Leiner Law, P.A. represents clients in Florida divorce and paternity cases involving attorney’s fees, temporary relief, final hearings, enforcement, modification, and appeals.

If attorney’s fees are an issue in your Florida family law case, call Mockler Leiner Law, P.A. at (813) 331-5699 or contact us online to speak with an experienced Tampa family law attorney.