Posted by Nydia Streets of Streets Law in Florida Divorce

When a party fails to meet his or her obligations under a Florida divorce judgment, what remedies are available? The answer depends on what type of obligations are being enforced. If support obligations are at issue, the remedy of contempt is available. Most other obligations in an order cannot be enforced by contempt and must be specifically reviewed to apply appropriate remedies. In the case De Diego v. Barrios, 3D17-1990 (Fla. 3d DCA April 24, 2019), the appellate court considered the appeal of a former husband against whom the trial court entered an equitable lien arising from the former husband’s failure to pay sums due to the former wife for equitable distribution.

As part of the parties’ final judgment of divorce, the former husband was ordered to pay one-half of the value of real property to the former wife within 90 days. The former husband was unable to make the $140,000.00 payment and a motion for contempt and enforcement was filed by the former wife. After a hearing, the trial court determined that the former husband’s conduct was egregious (despite his attempt to offer evidence that he was unable to refinance the home and that he had limited income), and ordered an equitable lien to attach to the home.

The former husband appealed, arguing the court abused its discretion in imposing a lien on a property he claims as his homestead. The appellate court agreed with him, holding “A review of the record, however, shows that the trial court's factual findings regarding Former Husband's conduct are not supported by competent, substantial evidence, but instead are based solely on allegations in Former Wife's unsworn Motion to Enforce and arguments made by the parties' counsels at the motion hearing. Indeed, the trial court did not take any sworn testimony or evidence at the hearing, nor did Former Wife file any sworn affidavit to substantiate the allegations made in her Motion to Enforce. ‘[W]hen an equitable lien is sought against homestead real property, some fraudulent or otherwise egregious act by the beneficiary of the homestead protection must be proven.’ Isaacson v. Isaacson, 504 So. 2d 1309, 1310-11 (Fla. 1st DCA 1987). Because the record contains no evidence of conduct supporting the application of the judicially created exception to the constitutional homestead protection, we find that the trial court abused its discretion in imposing an equitable lien on the marital home.”

Post-judgment litigation may be necessary when a party to a divorce is not upholding his or her end of the bargain. Schedule a consultation with a Miami divorce lawyer to understand the next steps in enforcing the terms of your final judgment of divorce.