The Palm Beach and Boca Raton Divorce Attorneys of Nugent Zborowski & Bruce recently reviewed a ruling from Florida’s Second District Court of Appeal addressing whether a former husband should be required to pay his former wife’s attorney’s fees and costs.

In DiNardo v. DiNardo, 37 Fla. Law Weekly D323a (Fla. 2D DCA Feb. 8, 2012), the trial court held that neither party was entitled to recover attorney’s fees and costs from the other party as each party had equal assets.

Generally, Florida Statute Section 61.16, the statute on attorney’s fees in family law cases, provides that attorney’s fees awards are primarily based on need and ability to pay the fees.

In DiNardo, the appellate court reversed the trial court on account of the former husband’s annual bonuses not being considered part of his income for purposes or determining his ability to pay the former wife’s attorney’s fees and costs:

[T]he trial court did not take the Husband’s bonus income into account in determining the amount of his income. Instead, the trial court considered only the Husband’s base salary and his automobile allowance. The trial court based this treatment of the Husband’s income on its finding that his 2005 bonus — amounting to $110,000 — was deposited into a bank account that was to be divided equally between the parties. This finding is correct as far as it goes. The Wife does not dispute that the bonus for 2005 was deposited into the account in question. But the order under review treats the receipt of the $110,000 bonus for 2005 as if it were a singular event. In fact, the trial court had already found in the final judgment that the Husband was receiving bonuses that were regular and continuous. That finding was never modified or vacated. Therefore, the trial court was required to take the Husband’s bonus income into account in assessing his financial resources available for the payment of attorney’s fees and costs. Cf. Drew v. Drew, 27 So. 3d 802, 802-03 (Fla. 2d DCA 2010) (requiring the trial court to consider regular and continuous bonuses in calculating income for the purposes of alimony and child support); Parry v. Parry, 933 So. 2d 9, 16 (Fla. 2d DCA 2006) (requiring the trial court to consider regular and continuous bonuses in calculating income for the purpose of child support); Shrove v. Shrove, 724 So. 2d 679, 682 (Fla. 4th DCA 1999) (holding that the trial court properly included the husband’s bonus income for the purpose of determining monthly support amounts); Crowley v. Crowley, 672 So. 2d 597, 600 (Fla. 1st DCA 1996) (holding that the trial court erred in excluding the husband’s bonus income in determining his ability to pay alimony and child support).

It is true that the equitable division of the parties’ assets and liabilities would leave them in a substantially equal position with regard to the property owned by each. But the omission of the Husband’s bonuses from the determination of his income dramatically understated his income relative to the Wife’s more modest income. When the Husband’s bonus income is added to his base salary, it is apparent that his available income substantially exceeds the income available to the Wife. It follows that the trial court’s denial of the Wife’s motion for attorney’s fees and costs was based on an incorrect finding that the financial resources of the parties were “relatively equal.” “

Click here to see a complete copy of the opinion in DiNardo v. DiNardo.

Click Florida Attorney’s Fee Information or call the Florida Divorce Lawyers of Nugent Zborowski & Bruce at (561) 844-1200 for more information about the recovery of attorney’s fees and costs in your Florida divorce or family law case.