Posted by Nydia Streets of Streets Law in Florida Family Law Procedure

Many Florida family law agreements have what is known as a “prevailing party clause” which states that if litigation is brought to enforce terms of the agreement, the prevailing party will have his or her attorney’s fees paid by the other party. Does an award under this type of clause require expert testimony as to the reasonableness of attorney’s fees? This was an issue in the case Cohen v. Cohen, 4D2024-1339 (Fla. 4th DCA June 18, 2025).

A post-judgment dispute arose regarding child support for which the former wife sought to have the former husband held in contempt. After the denial of the former wife’s motion, the former husband sought attorney’s fees from the former wife under a prevailing party clause in their marital settlement agreement. A hearing was held at which the former husband’s attorney testified regarding his fees without objection from the former wife. The court later issued an order which stated the former husband was entitled to fees, but because he did not present expert testimony as to the reasonableness of the fees incurred, his request was denied. He appealed.

The appellate court noted that under Fla. Stat. 61.16, “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.” The court held that although the former wife argued the former husband did not move for fees pursuant to Fla. Stat. 61.16, “We disagree with the Former Wife. In 1993, the Florida Legislature amended chapter 61.16 to include language that corroborating expert testimony is not necessary to support an award under this chapter. [internal citations omitted] The Legislature did not carve out only section 61.16—it carved out all of chapter 61. The circuit court proceeding here was, in fact, a chapter 61 proceeding. As a result, corroborating expert testimony was unnecessary. Because the circuit court otherwise found the Former Husband was the prevailing party and that the fees sought were reasonable, the Former Husband is entitled to an award of the requested fees.”

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