Posted by Nydia Streets of Streets Law in Florida Divorce
Is a specific pleading needed for an award of attorney’s fees in a Florida divorce? Generally, as long as a party is on notice that he or she may be required to pay attorney’s fees, specific language may not be required. This was an issue in the case McArdle v. McArdle, 4D22-346 (Fla. 4th DCA January 11, 2023).
The parties’ marital settlement agreement contained a clause requiring an inventory of the marital home within 30 days. It also contained a default provision that allowed a party to seek attorney’s fees in the event a party did not follow the terms of the agreement. The former husband filed a motion alleging the former wife did not allow him to complete the inventory as agreed. His motion specifically sought attorney’s fees under Florida Statute 61.16, and did not mention the default provision from the marital settlement agreement. A general magistrate granted his motion and awarded him fees, and the former wife filed a motion for exceptions which was granted. The trial court granted the exceptions because it held the former husband did not make a general request for fees and instead specifically requested them under Florida Statute 61.16. The former husband appealed.
The appellate court reversed, agreeing with the former husband. It held “In the context of a family law case, the husband’s reliance on section 61.16, instead of the correct provision of paragraph 8.12 of the marital settlement agreement, still gave notice to the wife. The specific provision relied on for attorney’s fees is not required under the progeny of Stockman and Caufield. Thus, the failure to rely on the specific provision, in this case paragraph 8.12 of the marriage settlement agreement, is not fatal to the request for attorney’s fees. Further, citing to section 61.16, a provision for attorney’s fees in dissolution actions, within the context of a family law related case, would still provide the required notice that an opposing party was seeking attorney’s fees.”
Schedule your appointment with a Miami family law attorney to understand how the law may apply to the facts of your case.