This is the single greatest fear in a high-conflict divorce: “How can I possibly fight back? He (or she) has all the money.”
It is a form of financial paralysis. You are trapped in an unbearable situation, but the person creating the conflict is also the one controlling the checkbook. They have a high-powered law firm on a massive retainer, and you are struggling to even afford a consultation.
This power imbalance is a deliberate tactic. The high-conflict spouse is counting on you to be too intimidated, too broke, and too exhausted to fight back. They are betting that they can “starve you out” and force you to accept a terrible settlement just to make the pain stop.
Here is the most important thing you need to hear: The Florida legal system has a direct, powerful, and effective solution for this.
You do not have to fight a millionaire with a minimum-wage budget. The law is designed to level the playing field. As a Tampa divorce lawyer, one of the very first actions I take in a high-conflict case is to secure my client’s access to legal funds. This is not about “winning” the divorce; it is about ensuring you have the basic ability to participate in it.
Understanding your right to attorney’s fees is the first step in taking your power back. In Florida, there are two primary ways to get your spouse to pay for your legal representation: Need-Based Fees and Sanction-Based Fees.
Part 1: The “Level Playing Field” (Florida Statute § 61.16)
This is the main tool, and it is designed for your exact situation. Florida Statute § 61.16, titled “Attorney’s fees, suit money, and costs,” is the law that allows a judge to order the spouse with more money to pay the legal fees for the spouse with less money.
The core principle, as defined by the Florida Supreme Court, is “to ensure that both parties will have a similar ability to secure competent legal counsel.”
This is not a “reward” or a “punishment.” It is a matter of simple, practical fairness. The court recognizes that a fair outcome is impossible if one party has a top-tier Tampa divorce lawyer and the other party is forced to represent themselves.
This law is your lifeline.
How to Get Need-Based Fees: The Temporary Relief Hearing
You do not have to wait until the end of your divorce to get help. This is a common misconception. You can (and must) ask for help immediately by filing a Motion for Temporary Relief.
This is your first, most critical battle. This is a “mini-trial” held in the first 30-60 days of your case where we ask a judge in Tampa to set the rules for the duration of the divorce. At this hearing, we will ask for temporary alimony, a temporary parenting plan, and, crucially, temporary attorney’s fees.
To win, we must prove two simple facts:
- You have the “Need” for assistance.
- Your spouse has the “Ability to Pay.”
Step 1: Proving Your “Need”
Your “need” is established through your Financial Affidavit. This is the most important document in your temporary hearing. It is a sworn statement, signed under penalty of perjury, that lists all your income, assets, debts, and monthly living expenses.
Your “need” is not just about being “poor.” It is a simple math problem.
- Your monthly income (or lack thereof)
- Minus your reasonable monthly expenses (housing, food, gas, etc.)
- Equals your monthly deficit.
If you have a monthly deficit, you cannot afford to pay a Tampa divorce lawyer. Furthermore, we will show the court that you have no “liquid” (easily accessible) assets to pull from. If your only asset is your half of the marital home or your locked-in 401(k), you cannot use those funds to pay your lawyer today.
This is what “need” looks like to a judge: a simple, factual deficit that makes it impossible for you to secure competent counsel on your own.
Step 2: Proving Their “Ability to Pay”
Next, we look at your spouse’s Financial Affidavit. This is where a high-conflict spouse will play games—they will underreport their income, hide bonuses, or claim their business is suddenly “failing.”
This is where an experienced Tampa divorce lawyer shines. We do not just take their affidavit at face value. We use the discovery process to get the real story.
- We subpoena their paystubs, which show their real year-to-date income, including bonuses and commissions.
- We get their bank statements, which show their real spending habits and deposits (which often contradict their “low” income claim).
- We show the judge that after all their claimed expenses are paid, they have a large monthly surplus.
The “Need vs. Ability” Showdown
At the hearing, we present the judge with a simple, undeniable picture:
- You: “Your Honor, as my Financial Affidavit shows, I have a $2,000 monthly deficit and no access to liquid funds. I cannot afford to litigate this case.”
- Your Spouse: “As my Financial Affidavit shows and these bank statements confirm, my spouse has a $10,000 monthly surplus. They have the clear and present ability to pay.”
This is not an emotional argument. It is a factual one. The judge will then order your spouse to pay a “reasonable” amount for your temporary attorney’s fees and costs. This amount is not a guess. Your Tampa divorce lawyer will submit their own affidavit and detailed billing records to justify the amount needed to get you through the next phase of litigation (like discovery or mediation).
This temporary fee award is the great equalizer. It gives you the fuel to keep fighting. It takes the primary weapon—financial intimidation—out of your high-conflict spouse’s hands.
Part 2: The “Bad Faith” Hammer (Fees as a Sanction)
The second way to get attorney’s fees is entirely different. It has nothing to do with your need or their ability to pay. It is a punishment.
These are “sanction-based” fees, and they are awarded when your high-conflict spouse (or their lawyer) behaves so badly that they intentionally drive up the cost of the divorce.
A high-conflict person loves to “play the game.” They use the legal system itself as a weapon to harass you, wear you down, and bleed you dry. They file endless, frivolous motions. They lie on their financial documents. They refuse to answer simple questions. They do this because they want you to spend money.
Florida law has multiple tools to punish this behavior.
The “Litigation Abuse” Problem
A high-conflict spouse’s playbook is predictable. Your Tampa divorce lawyer will see this pattern and know exactly how to counter it.
- Filing Frivolous Motions: They file an “emergency” motion because you got your child a haircut. They file a motion to hold you in contempt because you were 10 minutes late for an exchange. Each of these “paper” attacks requires your lawyer to stop, draft a formal legal response, and prepare for a hearing. This is “litigation abuse.”
- Refusing to Comply with Discovery: This is the most common and costly tactic. You send a simple request for their bank statements (which they are required to provide). They refuse. Your lawyer has to send 10 emails. They still refuse. Your lawyer then has to draft a Motion to Compel, schedule a hearing, and argue in front of a judge just to get a document you were entitled to from day one.
- Lying on Financial Affidavits: They “forget” to list a bonus. They “accidentally” omit a secret bank account. This forces your Tampa divorce lawyer to become a forensic detective, issuing subpoenas, taking depositions, and spending thousands of dollars to find the truth that should have been disclosed honestly.
These are not just “aggressive” tactics. This is bad faith litigation. And you should not have to pay for it.
The Legal Tools to Punish Bad Faith
Your Tampa divorce lawyer has two primary “hammers” to strike back with.
1. Florida Statute § 57.105: The “Frivolous Lawsuit” Sanction
This is the “big gun” of sanctions. This statute says that if a party or their lawyer brings a claim or defense that they knowis not supported by the facts or the law, the court shall (meaning it must) award attorney’s fees to the other side.
This is a high bar to clear, but it is a powerful tool against a truly malicious party. For example, if your spouse’s lawyer files a motion accusing you of hiding a million dollars, and you can prove they had zero evidence for this and were just trying to harass you, a judge can order your spouse and their lawyer to personally pay for the legal fees you spent defending that false claim.
It requires a “safe harbor” notice, where your Tampa divorce lawyer sends a formal letter to the other side saying, “Your claim is baseless. Withdraw it in 21 days, or we will be seeking 57.105 sanctions.”
2. The Court’s “Inherent Authority” (The Rosen Fees)
This is the more common and flexible tool. Based on a landmark Florida case, Rosen v. Rosen, the court has the “inherent authority” to award attorney’s fees as a sanction against any party who litigates in bad faith, even if their claim is not technically “frivolous” under 57.105.
This is the tool we use to combat the “war of attrition.” This is where we show the judge the pattern of misconduct.
How We Build a Case for Rosen Fees:
We do not just tell the judge your spouse is difficult. We show them. We build a meticulous record of their misconduct.
At the end of the case, your Tampa divorce lawyer will submit a thick binder to the judge that essentially says:
“Your Honor, this divorce should have cost $20,000. It cost $80,000. And here is why. This 60,000-dollar difference is directly attributable to the other party’s bad faith conduct.”
This binder will include:
- Exhibit A: The Discovery Log. “We requested bank statements on January 1. The other side objected. We sent 14 emails. They still refused. We filed a Motion to Compel on March 1. We had a 30-minute hearing on March 15. We finally got the documents on April 1. This simple request, which should have cost $100, cost $3,500. This is bad faith.”
- Exhibit B: The Frivolous Motion Log. “The other side filed three ’emergency’ motions regarding the child’s extracurriculars. All three were denied by the court. These motions cost my client $7,000 to defend and served no purpose other than to harass.”
- Exhibit C: The Lies. “The other party swore on their affidavit they had no other bank accounts. This deposition transcript (Page 40) and this subpoenaed bank statement (Exhibit D) prove they were hiding a $150,000 account. Finding this lie cost my client $12,000 in forensic accounting and deposition fees.”
When a judge sees this clear, undeniable pattern of malicious and costly behavior, they have the full authority to order the high-conflict spouse to pay all of the fees they caused you to incur.
This is the ultimate check and balance. It makes the high-conflict party financially responsible for their own bad behavior.
You Are Not Trapped. You Have a Path Forward.
The feeling of financial helplessness is what a high-conflict spouse relies on. They want you to believe that the legal system is only for the rich. They are wrong.
The law is designed to create a level playing field. Whether it is a temporary, “need-based” award to get you started or a final, “sanction-based” award to punish their bad-faith conduct, you have legal and powerful avenues to fund your fight.
Do not let financial intimidation stop you from seeking safety and a fair outcome. The very first conversation you have with a Tampa divorce lawyer should be about your “need” and your spouse’s “ability to pay.” A good lawyer will immediately know how to file the right motions to get you the temporary relief you need.
Your financial situation is not a barrier; it is the reason to act. An experienced Tampa divorce lawyer knows that leveling the financial playing field is the first, and most important, step to winning your freedom.
Frequently Asked Questions (FAQ)
What is Florida Statute 61.16? It is the primary “need-based” statute in Florida family law. It gives a judge the authority to order the spouse with a superior financial ability to pay the attorney’s fees for the spouse who has a financial need, ensuring both sides have equal access to a lawyer.
How fast can I get temporary attorney’s fees? You must first file a Motion for Temporary Relief. In Hillsborough County, you can typically get a hearing scheduled within 30 to 60 days. This is one of the very first things a Tampa divorce lawyer will file in your case.
What if my spouse quits their job to avoid paying me? This is a common, bad-faith tactic. A judge can “impute income” to your spouse, meaning they will calculate support and fees based on what your spouse should be earning, not their new, artificially low income.
What is the difference between “need-based” and “sanction-based” fees? “Need-based” fees (under 61.16) are about leveling the playing field. It is not a punishment; it is about fairness and access to a lawyer. “Sanction-based” fees (like under 57.105 or Rosen) are a punishment for bad behavior, such as lying to the court or filing frivolous motions.
Can my spouse’s lawyer be forced to pay my fees? Yes. Under Florida Statute 57.105, if the lawyer knew (or should have known) that a claim or defense was frivolous and not supported by facts or law, a judge can order the lawyer and their client to split the cost of your attorney’s fees.
The McKinney Law Group: Tampa Divorce Lawyers Helping You Protect What Matters Most
Divorce can be one of life’s most difficult transitions. We help Tampa clients make informed legal decisions that protect their children, their assets, and their peace of mind.
Call 813-428-3400 or email [email protected] to schedule a consultation.