Florida Divorce Attorney’s Fees: Fla. Stat. § 61.16 & Rosen v. Rosen (2026)

By Nadia Pazos, Family Law Attorney, Pazos Law Group · Updated August 2026

Fla. Stat. § 61.16 is the statute that decides who pays the lawyers in a Florida family case. It authorizes an award of attorney’s fees, suit money and costs based on the financial resources of both parties — and, under Rosen v. Rosen, 696 So. 2d 697 (Fla. 1997), on how the litigation itself has been conducted.

What Does Fla. Stat. § 61.16 Allow a Court to Do?

Fla. Stat. § 61.16 is titled “Attorney’s fees, suit money, and costs.” Subsection (1) is the operative grant of authority: the court may “from time to time, after considering the financial resources of both parties, order a party to pay a reasonable amount for attorney’s fees, suit money, and the cost to the other party of maintaining or defending any proceeding under this chapter, including enforcement and modification proceedings and appeals.”

Four things follow from that sentence alone:

• The trigger is financial resources, not who won. The statute directs the court to consider “the financial resources of both parties.”
• “From time to time” means fees can be awarded more than once, and at more than one stage.
• “Suit money” is a separate category from fees and costs — it covers the expense of prosecuting or defending the case.
• Coverage is broad: any proceeding under chapter 61, expressly “including enforcement and modification proceedings and appeals.”

Who Pays Attorney’s Fees in a Florida Divorce?

Florida does not follow a pure “each side pays its own” rule in family cases. Under § 61.16(1), the court can shift a reasonable amount from the spouse with greater financial resources to the spouse with fewer — in a dissolution under § 61.052, in a later modification, in an enforcement action, or on appeal.

The purpose the courts have drawn from the statute is parity of representation: both parties should have a similar ability to obtain competent counsel. That is why the inquiry starts with resources rather than outcome.

What Did Rosen v. Rosen Add to § 61.16 in 1997?

In Rosen v. Rosen, 696 So. 2d 697 (Fla. 1997), the Florida Supreme Court held that § 61.16 should be construed liberally rather than restrictively, so that a trial court may consider any factor necessary to provide justice and ensure equity between the parties. The financial resources of the parties remain the primary consideration; Rosen adds that they are not the only one.

The additional factors courts draw from Rosen include:

• the scope and history of the litigation between the spouses;
• the duration of the litigation;
• the merits of the parties’ respective positions;
• whether a party’s position is intended to harass, frustrate or delay the other party; and
• the existence of prior or pending litigation between them.

Practically, Rosen is what lets a court respond to a spouse who has the same income as the other but has run up both sides’ fees through obstruction. Nothing in § 61.16(1) forbids that consideration, and Rosen confirms it is available.

Can a Party That Ignored a Court Order Still Get Fees?

Not in an enforcement action where the refusal was unjustified. Section 61.16(1) provides that “in those cases in which an action is brought for enforcement and the court finds that the noncompliant party is without justification in the refusal to follow a court order, the court may not award attorney’s fees, suit money, and costs to the noncompliant party.”

The word is may not — a prohibition, not a factor. Two findings unlock it: the action is one for enforcement, and the noncompliance was without justification. Enforcement of a parenting plan is separately addressed under § 61.13.

Do You Need an Expert Witness to Prove Your Fees?

No. Section 61.16(1) states: “An application for attorney’s fees, suit money, or costs, whether temporary or otherwise, shall not require corroborating expert testimony in order to support an award under this chapter.”

This removes a real expense from smaller cases. It does not remove the requirement that the amount be reasonable — it removes the requirement of a second lawyer testifying that it is.

How Are Appellate Fees Decided Under § 61.16(1)?

Two sentences of § 61.16(1) address appeals directly:

• Continuing trial-court jurisdiction: “The trial court shall have continuing jurisdiction to make temporary attorney’s fees and costs awards reasonably necessary to prosecute or defend an appeal on the same basis and criteria as though the matter were pending before it at the trial level.”
• The appellate standard: “In determining whether to make attorney’s fees and costs awards at the appellate level, the court shall primarily consider the relative financial resources of the parties, unless an appellate party’s cause is deemed to be frivolous.”

The frivolousness exception matters: a party whose appeal is deemed frivolous cannot rely on the relative-resources analysis to fund it.

Can Fees Be Paid Directly to the Lawyer?

Yes. Section 61.16(1) provides that “in all cases, the court may order that the amount be paid directly to the attorney, who may enforce the order in that attorney’s name.” The same language appears again for contempt proceedings in § 61.16(2)(c). This gives counsel a direct enforcement right rather than requiring the client to collect and forward.

What Happens in Title IV-D Child Support Cases?

Section 61.16(1) sets a distinct rule: in Title IV-D cases, “attorney’s fees, suit money, and costs, including filing fees, recording fees, mediation costs, service of process fees, and other expenses incurred by the clerk of the circuit court, shall be assessed only against the nonprevailing obligor after the court makes a determination of the nonprevailing obligor’s ability to pay such costs and fees.”

It adds that “the Department of Revenue shall not be considered a party for purposes of this section; however, fees may be assessed against the department pursuant to s. 57.105(1).” Note the parallel structure in § 61.183(1), which imposes the same nonprevailing-obligor limitation on Title IV-D mediation costs. Child support itself is calculated under § 61.30.

Can Fees Be Awarded for Contempt (§ 61.16(2))?

Yes. Section 61.16(2) applies to actions brought under Rule 3.840, Florida Rules of Criminal Procedure, “whether denominated direct or indirect criminal contempt,” and gives the court authority to:

1. § 61.16(2)(a) — “Appoint an attorney to prosecute said contempt”;
2. § 61.16(2)(b) — “Assess attorney’s fees and costs against the contemptor after the court makes a determination of the contemptor’s ability to pay such costs and fees”;
3. § 61.16(2)(c) — “Order that the amount be paid directly to the attorney, who may enforce the order in his or her name.”

Ability to pay is an express prerequisite in § 61.16(2)(b) — the court must make that determination before assessing.

What Is § 57.105(1) and How Does It Interact With § 61.16?

Section 61.16(1) cross-references § 57.105(1) as the route for assessing fees against the Department of Revenue, which is otherwise not a party for § 61.16 purposes. The two statutes do different work: § 61.16 is a need-and-resources statute for family cases; § 57.105(1) is Florida’s general sanction provision for unsupported claims or defenses. A litigant can face exposure under both.

Are Mediation-Confidentiality Breaches Fee-Shifting?

Yes, on a separate track. Under § 44.405(1), a violation of mediation confidentiality in a court-ordered mediation “may also subject the mediation participant to sanctions by the court, including, but not limited to, costs, attorney’s fees, and mediator’s fees.” And § 44.406(1)(c)–(d) allows recovery of attorney’s fees, mediator’s fees and costs both from the mediation and from the application for remedies itself. Those remedies do not depend on the § 61.16 resources analysis.

What Should a § 61.16 Fee Motion Establish?

1. The financial resources of both parties — the primary consideration under § 61.16(1) and Rosen.
2. The proceeding is under chapter 61 — including enforcement, modification, or appeal.
3. Reasonableness of the amount — without the need for corroborating expert testimony, per § 61.16(1).
4. Any Rosen conduct factors — scope, duration, merits, harassment or delay, and prior or pending litigation.
5. For enforcement: whether the noncompliant party was without justification, which bars a fee award to that party.
6. For contempt: the contemptor’s ability to pay, required by § 61.16(2)(b).

Frequently Asked Questions

Official Sources & Related Reading

• Fla. Stat. § 61.16, Attorney’s fees, suit money, and costs — official text (Online Sunshine)
• Fla. Stat. § 57.105, Attorney’s fee; sanctions — official text
• Fla. Stat. § 61.183, Mediation of certain contested issues
• Fla. Stat. § 44.406, Confidentiality; civil remedies
• Florida Family Law Forms — flcourts.gov
• Fla. Stat. § 44.405 — Mediation Confidentiality
• Fla. Stat. § 61.052 — Florida Divorce Requirements
• Contempt & Enforcement — Practice Area

The information on this page is for general informational purposes only and does not constitute legal advice. Reading or sharing this content does not create an attorney-client relationship with Pazos Law Group. Florida law and the application of statutes change over time; please consult a licensed Florida attorney about your specific situation.