In Florida, each side pays its own lawyer unless something specific says otherwise. That default is called the American Rule, and the Florida attorney fees statute framework is really a collection of statutes and contract rules that carve out exceptions to it. If you can point to a statute that fits your case, or a contract clause that shifts fees, you may recover from the losing side. If you cannot, winning the case does not get your legal bill paid.
The 2023 tort reform law, HB 837, rewrote large parts of this landscape, especially for insurance disputes. Signed by Governor DeSantis on March 24, 2023, it repealed the long-standing one-way fee statute for policyholders and tightened how judges calculate reasonable fees. Any assumption about fee recovery based on pre-2023 practice needs a second look.
Sanctions for Frivolous Claims Under Section 57.105
Section 57.105 is the statute that punishes baseless litigation. When a court finds that a party or their attorney knew, or should have known, that a claim or defense had no factual support and no basis in existing law, the court must award reasonable attorney fees to the other side. The fees are split equally between the losing party and their lawyer, giving counsel a personal stake in not pursuing meritless positions. Prejudgment interest runs from the point entitlement is established, not just from the final fee judgment.1The Florida Legislature. Florida Code 57.105 – Attorney Fee; Sanctions for Raising Unsupported Claims or Defenses
The 21-Day Safe Harbor
You cannot file a 57.105 motion by surprise. The statute requires you to serve the motion on the other side and wait 21 days before presenting it to the judge. If the opposing party withdraws or corrects the offending claim or defense in that window, the motion dies. The safe harbor gives litigants a chance to back off a weak position without judicial penalty.1The Florida Legislature. Florida Code 57.105 – Attorney Fee; Sanctions for Raising Unsupported Claims or Defenses
Offers of Judgment Under Section 768.79
Section 768.79 pressures parties to settle by punishing those who reject reasonable offers. Either side can serve a formal written offer of judgment. If the other side rejects it and the final result at trial is at least 25 percent less favorable than the offer, the party who made the offer recovers attorney fees from the date the offer was filed forward.2Florida Senate. Florida Code 768.79 – Offer of Judgment and Demand for Judgment
The 25 percent threshold cuts both ways. If a defendant’s offer is rejected and the plaintiff wins nothing, or wins at least 25 percent less than the offer, the defendant recovers fees. If a plaintiff’s demand is rejected and the plaintiff wins at least 25 percent more than the demand, the plaintiff recovers. When defense fees exceed the plaintiff’s recovery, the court enters a net judgment for the defendant.2Florida Senate. Florida Code 768.79 – Offer of Judgment and Demand for Judgment
Florida courts demand precise compliance with the formal requirements. The offer must be in writing, explicitly state that it is being made under Section 768.79, name both the party making it and the party receiving it, state the total amount, and separately specify any portion attributable to punitive damages. A missing element can kill the fee claim entirely, and the defect usually surfaces only after trial.3The Florida Legislature. Florida Code 768.79 – Offer of Judgment and Demand for Judgment The 2023 reforms extended this mechanism into insurance contract disputes through new Section 624.1552, giving insurers and policyholders a two-way fee-shifting tool in coverage litigation.4Florida Senate. 2023 Bill Summaries CS/CS/HB 837 – Civil Remedies
Reciprocity for One-Way Contract Clauses
Many consumer contracts, loan documents, and commercial leases let only one side (usually the business that drafted the agreement) recover attorney fees. Section 57.105(7) lets a court award reasonable fees to the other party as well, even when the contract only mentions one side. If you signed a loan agreement giving the lender fees against you but saying nothing about your right to recover, a court can treat that clause as running both ways.1The Florida Legislature. Florida Code 57.105 – Attorney Fee; Sanctions for Raising Unsupported Claims or Defenses
The statute says the court “may” extend fees, not “shall.” That makes reciprocity discretionary, not automatic. In practice, Florida judges routinely apply it in mortgage foreclosure cases where a borrower successfully defends against foreclosure, but the permissive language means a judge can decline in unusual circumstances. The provision applies to contracts entered into on or after October 1, 1988.
Fee-Shifting by Case Type
Beyond the general mechanisms, Florida has subject-specific statutes that allow fee awards in particular kinds of disputes. The conditions vary significantly from one area to another.
Insurance Coverage After the 2023 Repeal
The 2023 reform package fully repealed Section 627.428, which for decades had required insurers to pay a policyholder’s attorney fees whenever the policyholder won a coverage dispute. The replacement, Section 86.121, is far narrower. A policyholder can recover fees only by filing a declaratory judgment action after the insurer issues a total coverage denial, and only if the policyholder wins that declaratory judgment. A defense under a reservation of rights does not count as a total denial, so an insurer that partially contests coverage without outright denying it does not trigger the fee provision. The statute does not apply at all to residential or commercial property insurance policies, leaving those policyholders without a one-way fee-shifting mechanism.5Florida House of Representatives. Florida Statutes Chapter 86
Insurance Bad Faith
Section 624.155 is still intact. A policyholder can sue an insurer that fails to act in good faith in handling a claim, and if the policyholder prevails at trial or on appeal, the insurer is liable for damages, court costs, and reasonable attorney fees. The threshold is higher than an ordinary coverage dispute: the insurer must have unreasonably failed to settle or process a valid claim despite having the ability and obligation to do so.6Florida Senate. Florida Code 624.155 – Civil Remedy
Consumer Protection (FDUTPA)
The Florida Deceptive and Unfair Trade Practices Act allows the prevailing party to recover reasonable fees and costs after a final judgment and exhaustion of all appeals. This runs both ways: either the consumer or the business can recover if they win. A plaintiff bringing a FDUTPA claim should understand that losing could mean paying the defendant’s legal costs.7Justia. Florida Code 501.2105 – Attorney Fees
Family Law
Section 61.16 lets a court order one spouse to pay the other’s fees in divorce, custody, and related proceedings after considering both parties’ financial resources. The goal is to make sure the spouse with fewer resources can afford adequate representation. There is no automatic entitlement; the party asking must show a real financial need.8Florida Senate. Florida Code 61.16 – Attorney Fees, Suit Money, and Costs
Probate and Trust Disputes
Section 733.106 allows a court to award attorney fees from an estate’s assets when an attorney has rendered services to the estate. A court can also assess fees against a specific beneficiary’s share, and if that share is insufficient, direct payment from a related trust when a pour-over will is involved.9Florida Senate. Florida Code 733.106 – Costs and Attorney Fees
Construction Liens
Section 713.29 entitles the prevailing party in a construction lien enforcement action to reasonable attorney fees at both the trial and appellate levels. The fee is set by the court and taxed as part of the prevailing party’s costs.10Justia. Florida Code 713.29 – Attorney Fees
Mandatory Versus Discretionary Awards
Fee statutes split roughly into two groups, and the split matters because it affects how predictable the outcome is and how much leverage a fee claim creates in settlement talks.
Mandatory provisions use the word “shall.” Under Section 57.105(1), once a court finds a claim or defense was frivolous, the fee award is required. Under Section 86.121, if a policyholder wins a declaratory judgment after a total coverage denial, the court must award fees. Under Section 713.29, the prevailing party in a construction lien dispute is entitled to fees. The judge has no discretion to deny the award once the threshold conditions are satisfied.
Discretionary provisions use the word “may.” Section 61.16 asks the court to weigh financial disparity before deciding. Section 57.105(7) permits, but does not require, courts to extend a one-way fee clause to both parties. FDUTPA’s fee provision is treated as discretionary. With these statutes, winning does not guarantee a fee award; the judge still weighs additional factors.
How Courts Calculate the Fee
When a court decides to shift fees, the next question is how much. Florida courts use the lodestar method: a reasonable hourly rate times the reasonable number of hours worked on the case. The product is the presumptive fee.
Judges evaluate reasonableness using factors drawn from case law, including:
- Time and difficulty: how many hours the case required and how complex the legal issues were
- Skill required: whether the case demanded specialized knowledge
- Local market rates: what attorneys of similar experience charge in the same geographic area
- Results obtained: the amount at stake and how much the client actually recovered
- Time constraints: any deadlines imposed by the client or the circumstances
- Attorney experience: the reputation and ability of the lawyers who worked the case
- Fee structure: whether the attorney worked on a fixed-fee or contingency basis
The judge must make specific findings on the reasonable hourly rate and reasonable hours. Under Section 57.104, the lodestar now carries a strong presumption of sufficiency. A multiplier on top of the lodestar is available only in rare and exceptional circumstances, matching the stricter federal standard.11The Florida Legislature. Florida Code 57.104 – Reasonable Attorney Fee Before 2023, multipliers were common in insurance cases with contingency arrangements. That era is largely over.
Deadlines and Procedure
Missing the filing deadline can forfeit an award you clearly deserve. Florida Rule of Civil Procedure 1.525 requires any motion for fees or costs to be served within 30 days after the filing of the judgment that concludes the action, including final judgments, judgments of dismissal, and voluntary dismissals.12The Florida Bar. Florida Rules of Civil Procedure – Rule 1.525
The motion has to establish entitlement based on a specific statute, contract provision, or court order. Simply winning is not enough; you must identify the legal basis that authorizes the fee shift. Courts often hold evidentiary hearings to evaluate reasonableness, where the moving party presents billing records, explains the work performed, and addresses the lodestar factors.
Offers of judgment carry extra procedural layers. The offer itself must comply with every statutory requirement before trial, and the post-trial fee motion must show both that the offer was valid and that the final judgment crossed the 25 percent threshold.2Florida Senate. Florida Code 768.79 – Offer of Judgment and Demand for Judgment
Appellate fees run on separate rails. A motion for appellate fees must be filed in the appellate court, not the trial court, and served no later than the deadline for serving the reply brief. It cannot be embedded in the appellate brief itself; it has to be a separate motion.
Collecting the Award
Getting a fee award from a judge and actually collecting the money are two different problems. When the losing side refuses to pay, Florida provides several enforcement tools.
The most direct is a writ of execution under Chapter 56 of the Florida Statutes, which lets the prevailing party levy against the judgment debtor’s non-exempt property, including real estate, personal property, bank accounts, vehicles, and corporate assets. If the debtor’s assets are not obvious, the creditor can start proceedings supplementary under Section 56.29, which forces the debtor to appear and disclose financial information under oath.13The Florida Legislature. Florida Statutes Title VII – Chapter 56 Final Process
Family law cases add contempt as a lever. A party who defies a court order to pay fees can face escalating sanctions, including further monetary penalties and, in extreme situations, incarceration for civil contempt. That makes family law fee orders somewhat easier to enforce than ordinary civil fee judgments, where collection depends on finding assets to seize.
Taxes on Fee Awards
Fee awards can create unexpected tax bills. Under federal rules, whether a fee award is taxable depends on the underlying claim, not the fee itself. If the recovery that generated the fee is taxable income (lost wages, breach of contract damages, punitive damages), the associated fees are also included in gross income.14Internal Revenue Service. Publication 525 – Taxable and Nontaxable Income
Compensatory damages for physical injuries or physical sickness are excluded from income, and attorney fees tied to those damages follow the same exclusion. Emotional distress damages not arising from a physical injury are taxable, and the fees linked to them are taxable too.14Internal Revenue Service. Publication 525 – Taxable and Nontaxable Income
For individuals paying fees in non-physical-injury civil litigation, the deduction path has narrowed. The suspension of miscellaneous itemized deductions that began in 2018 has been made permanent, eliminating what was historically the main deduction route for personal legal expenses. An above-the-line deduction remains for employment discrimination, civil rights, and whistleblower cases, but that deduction cannot exceed the litigation income received in the same tax year. If a sizable fee award or obligation is on the horizon, talk to a tax professional before the case resolves; the tax effect can shift the net value of the result considerably.