Posted by Nydia Streets of Streets Law in Florida Divorce
Most Florida marital settlement agreements contain what is known as a default provision. This provision provides that when post-judgment litigation occurs such as enforcement or contempt, the prevailing party will be entitled to payment of his or her attorneys’ fees and costs by the losing party. In Christensen v. Christensen, 2D19-1292 (Fla. 2d DCA March 6, 2020), the former wife appealed the trial court’s denial of her fees despite such a provision in the parties’ marital settlement agreement.
The parties were involved in post-judgment litigation concerning the former wife’s request for enforcement and contempt. In the parties’ marital settlement agreement, a provision was included which stated “If either party fails to comply with the provisions of this Agreement, the defaulting party must pay all attorney's fees and costs incurred, including any fees and costs incurred for appeals, as a result of any enforcement action. If as a result of one party's claim that the other party has defaulted, the parties agree on an enforcement plan, or modification, although without an order of enforcement from this Court, the non-claiming party will be responsible for all fees and costs. In the event that either party challenges the validity or enforceability of this agreement and that party is unsuccessful, that party shall pay for the reasonable attorney's fees and costs for both parties.”
The former wife’s motion for enforcement and contempt was granted, but the trial court declined to award her attorneys’ fees and costs. The former wife appealed and the appellate court agreed with her that it was error for the trial court to decline to follow the clear language of the parties’ settlement agreement. The appellate court held “‘Provisions in ordinary contracts awarding attorney's fees and costs to the prevailing party are generally enforced.’ Lashkajani v. Lashkajani, 911 So. 2d 1154, 1158 (Fla. 2005). ‘Trial courts do not have the discretion to decline to enforce such provisions, even if the challenging party brings a meritorious claim in good faith.’ Id. Such clauses ‘do not address either spouse's need for support. They merely solidify the party's agreement by providing a disincentive to spouses who may frivolously challenge it.’ Id. at 1159. Notably, because marital settlement agreements are governed by contract principles, when such an agreement contains a provision requiring fees to be awarded to a prevailing party, trial courts must enforce those provisions. [. . .]”
Drafting, entering and enforcing a Florida martial settlement agreement should be done with the held of a Florida divorce lawyer. Schedule a consultation with one to go over your case.