Posted by Nydia Streets of Streets Law in Florida Divorce
When parties to a Florida divorce discuss a settlement “on the record” or in the presence of the court and a court reporter, the court must ask both parties certain questions before ratifying the agreement. This is to ensure that both parties understand and fully agree to the settlement terms discussed. The case Frenkel v. Costa, 4D19-1841 (Fla. 4th DCA October 7, 2020) outlines what must be asked.
During a hearing on the wife’s motion for temporary relief in their pending divorce case, a break was requested so that the parties could discuss a global settlement offer. After about an hour, the parties returned to the courtroom and announced a deal had been reached between the parties. The terms of the agreement were announced on the record, and the judge asked both parties if they agreed to the terms and confirmed neither was coerced. The wife later moved for enforcement of the oral agreement, and the husband filed a motion to set it aside. After a hearing, the trial court granted the wife’s motion and denied the husband’s, taking judicial notice that it observed both parties conferring with their attorneys while the agreement was announced on the record in court. The husband appealed.
In reversing the trial court’s decision, the appellate court noted “In Richardson, we held that for an oral MSA to be valid and enforceable, the trial judge must engage in a two-part inquiry. 197 So. 3d at 145. First, ‘the trial judge must obtain clear and unequivocal assent to the MSA from each party on the record.’ Id. Second, the trial judge must ‘confirm that each party has discussed the MSA with their attorney and fully understands the terms.’”. The court went on to hold “In the present case, although the trial court did obtain clear and unequivocal assent to the MSA from each party, it failed to conduct the second part of the inquiry and confirm whether each party consulted with their respective attorneys or had the opportunity to do so. [internal citation omitted]. The fact that the trial court later took judicial notice that it observed each party consulting with their attorneys during the recitation of the agreement did not serve to remedy this defect. This is especially true considering a review of the transcript from that hearing reveals husband spent most of the time speaking with his accountant, not with his attorney.”
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