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

Parties can agree in their Florida marital settlement agreement that if future litigation is initiated by either party, the party who “wins” will have his or her attorney’s fees paid by the other party. This is referred to as a prevailing party clause. Must a Florida family court enforce this clause? This was at issue in the case Levy v. Levy, 3D19-73 (Fla. 3d DCA July 15, 2020).

The parties entered a marital settlement agreement which provided in pertinent part: “In the event that either party should take legal action against the other by reason of the other's failure to abide by this Agreement, the party who is found to be in violation of this Agreement shall pay to the other party who prevails in said action, the prevailing party's reasonable expenses incurred in the enforcement of this Agreement, said expenses to include, but not be limited to, reasonable attorney's fees, court costs, filing fees, court reporter appearance fees, copying costs, travel costs and transcription fees.” The former husband filed a motion seeking various relief after the final judgment was entered. After a hearing, the former husband’s motion was denied with the court making findings against him. The former wife then requested that the former husband pay her attorney’s fees based on the prevailing party clause, and the court denied her request. She appealed.

The appellate court sided with the former wife, holding “Section 57.105(7), Florida Statutes (2011), states in part: (7) If a contract contains a provision allowing attorney's fees to a party when he or she is required to take any action to enforce the contract, the court may also allow reasonable attorney's fees to the other party when that party prevails in any action, whether as plaintiff or defendant, with respect to the contract. This subsection applies to any contract entered into on or after October 1, 1988. Section 57.105(7) amends by statute all contracts with prevailing party fee provisions to make them reciprocal. Thus, it also applies to those parties, like the former wife in this case, who successfully defend against a breach of contract action. The statute applies if the contract contains a prevailing party provision, and the litigant seeking fees is a party to the contract, [internal citation omitted] which is exactly the set of facts before the Court in this case. Thus, we would not be rewriting the parties' contract if the former wife is awarded prevailing party attorneys' fees because section 57.105(7) amends the prevailing party attorneys' fee provision by operation of law. The award is mandatory, once the lower court determines a party has prevailed.”

Having attorney’s fees paid is a significant part of litigation. Schedule a consultation with a Miami family law attorney to understand the best way to proceed in your case.