Attorneys fees in domestic violence proceedings
Florida law allows a person who is the victim of domestic violence or who is in real fear of domestic violence to obtain a court order for protection to prevent the perpetrator from having contact with the victim. The Florida Supreme Court has said that if a person files a petition for a certain type of protective injunction, but the petition is not supported by actual events or facts, the defendant may seek to recover legal fees from the petitioner through the court.
Interpretation of the language of the law
On Jan. 11, 2018, in the case of Lopez v. Hall, the state Supreme Court looked at whether attorneys fees are available for “unsupported claims and defenses” asserted by a party in a proceeding under the Florida statute allowing protective injunctions for repeat violence, sexual violence or dating violence. The court agreed to decide the issue because state appeals courts had disagreed on the issue.
The court said yes – that a party may request legal fees in a petition for a protective order for repeat, sexual or dating violence. The court noted that the Florida attorneys fees statute says that legal fees may be available when a party or its lawyer “knew or should have known” that a “claim or defense” they asserted in a “civil proceeding or action” was “baseless.”
The court then held that the law that allows a request for this court order provides for a “civil cause of action for a protective injunction,” so the legal fee statute should apply – making available the possibility for an award of attorneys fees.
Florida legislature responds
Since the Lopez decision, the state legislature amended the attorneys fee statute effective Oct. 1, 2019, to clarify that in a request for attorneys fees in a proceeding for a protective order not only against repeat violence, sexual violence or dating violence, but also one against domestic violence or stalking, the court must be able to find by clear and convincing evidence that either the petitioner or responding party “knowingly made a false statement” in the proceedings … “with regard to a material matter.”
Anyone considering a petition for a protective injunction or who must respond to one, or who would like to request legal fees in such a proceeding should speak with an experienced lawyer immediately to understand all potential remedies and issues.