Posted by Nydia Streets of Streets Law in Florida Divorce
When parties are planning to divorce in Florida, they may wonder what rights they have to withdraw money from joint bank accounts. Parties may be concerned that a court can “punish” them for removing funds from an account or that if they do not remove the funds, the other spouse will remove them. How a court treated a spouse’s withdrawal of funds was an issue in Haslauer v. Haslauer, 1D2022-0191 (Fla. 1st DCA March 6, 2024).
In this divorce case, there was a money market account owned by the husband prior to marriage. During the marriage it became a joint account. When a divorce petition was filed, the husband withdrew $17,500 from the account for the stated purpose of paying his attorney’s fees. The former wife filed a counter-petition seeking payment of her attorney’s fees. Her request simply stated: “The Wife has become obligated to pay the undersigned attorney a reasonable fee and costs to represent her in this action, on both a temporary and permanent basis. The Husband has the financial resources to pay same and should be required to do so.” She did not allege she had a need for attorney’s fees.
The trial court ordered the former husband to pay an equalizing payment to the former wife of $41,000.00 in equitable distribution. The court also determined that the parties’ net incomes were about the same. The trial court, without making any specific findings, also ordered the former husband to pay the former wife’s attorney’s fees, citing generally that former wife had a need and former husband had the ability to pay. On a motion for rehearing, the fee award was characterized as a reimbursement to the former wife of the funds withdrawn former husband from the money market account. The former husband appealed.
The appellate court reversed, holding “In her counter-petition, Former Wife only included a generic request for attorney’s fees. Although Former Wife alleged that ‘Husband has the financial resources’ to pay the attorneys’ fees for both parties, the counter-petition failed to allege that Former Wife could not obtain the services of a competent attorney without an order under section 61.16. Instead of demonstrating how, for example, Former Husband’s unilateral transfer of funds created a need for an order under section 61.16, Former Wife alleged that she used a ‘high interest credit card’ to retain the services of her attorney. Then at trial, Former Wife testified that she wanted Former Husband to pay her attorney’s fees because she ‘already paid his attorney’s fees.’ But as stated above, equitable reimbursement is not the purpose of section 61.16. Because the counter-petition failed to plead an immediate need for financial assistance, it did not establish a basis for an award of attorney’s fees under section 61.16.”
The court also found that there was no showing of ability to pay or need in light of the sizeable equitable distribution awarded to the former wife and the similarity in incomes between the parties. The court further held “Absent misconduct, Former Husband was free to use marital funds to pay his legal fees for the dissolution proceeding.”
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