In a family law case, who's paying for the lawyers?

The short answer is, probably you.

But there's a lot more to it than that, especially in a Florida family law case.

Many lawmakers have suggested that we have the "loser pays" rule in the U.S., which is where the loser in the lawsuit has to pay the attorney fees and court costs of the winning side. These legislative and congressional bills are usually killed by insurance company lobbyists (that's right, the same ones crying about the "litigation crisis") because they know insurance companies would usually be the losers in the lawsuits. The fact is, we have a number of "loser pays" rules in family law (and general civil) court already without the "loser pays" rule. But, like I said, there's more to it than that.

First, how do you determine who the "loser" is? What if one person wins custody of one child but the other wins custody of another? What if one person wins the house but another wins the 401(k)? "Winning" is difficult to define in family law.

So, in family law, we try not to focus on who is the winner, but who can afford the lawyers. If one person makes $300,000 and the other makes $30,000, the judge may often say that the person making the most money has to pay 90% of the lawyers' fees of the other person. (Why 90% and not all of the fees? The idea is that the 10% will act as a "co-pay", forcing the person receiving attorneys' fees from the other side not to purposely run up attorneys' fees just to harm the other side.) We lawyers call this the Rosen rule, based on the original appellate court case that allowed attorneys' fees to be paid by the party that makes the most money.

But don't get too excited about the Rosen rule. For one thing, judge's don't always grant Rosen fees. Sometimes, judges will say, "Well, this case ought to settle, so I'm not awarding any fees to anyone." Second, lawyers usually want you to pay the fees up front, even though the other side may have to reimburse you based on a Rosen motion. After all, lawyers have expensive rent, expensive employees, expensive furniture, and so on. Our office landlords just don't want to hear, "I'll pay you in a couple of months when the other side pays my fees." You'll probably still have to pay your lawyer up front, then get reimbursed from the other side later. Lastly, it's very, very common for judges put off attorneys' fee motions until after the case--including the trial if there is one--is completed. So, even if you do get reimbursed, it may not be until the case is completely over.

Rosen isn't the only way to get fees paid by the other side. One of my favorites--and one of the least used--is called the Request for Admissions. If, for example, the other side lies on his or her financial affidavit about income (a very common event), you can send out a request in a certain form for the person to admit that he or she makes more. If the other side doesn't respond within 30 days, they've admitted it automatically, which is great for those cases where the other side is constantly delaying. If they deny it, they must pay the cost and fees for your lawyer to prove it up at trial, subpoena the employer's records, take the other person's boss's deposition, etc., and it's almost impossible for a judge to refuse to award the fees and costs.

There are lots of other ways to have fees paid by the other side in Florida. Believe it or not, we even have the "loser pays" rule. It's just not automatic until you make it automatic. You have to invoke the "loser pays" rule by filing a form which essentially threatens the other side by saying, "If you don't settle for x, you have to pay our costs and fees." We lawyers call it the "OJ" rule (Offer of Judgment, not the O.J. you're thinking of).

Bottom line, there are lots and lots of ways in Florida family court to cause the other side to pay your attorneys' fee and litigation costs. But a lot of them aren't used, some are almost never used, and some, though used, don't get granted until the case is almost finished. So, who's paying the fees? Probably you.