Posted by Nydia Streets of Streets Law in Florida Child Custody
Many Florida family law agreements such as prenuptial agreements, parenting plans, and marital settlement agreements contain clauses that have both parties waiving payment of attorney’s fees by the other party. Are these waivers enforceable? Some are not, and this was an issue in the case Bauman v. Agudelo, 3D23-1954 (Fla. 3d DCA May 8, 2024).
The appellate opinion in this case, which seemingly concerned a child custody-related matter, does not give information on the background of the case. But the trial court’s decision was affirmed with the following citations: “See Helinksi v. Helinski, 305 So. 3d 703, 708 (Fla. 3d DCA 2020) (“[W]here the issue in litigation requires the trial court to determine what is in the best interests of the child, the trial court has the discretion to award attorneys’ fees and costs pursuant to section 61.16, notwithstanding any agreement between the parties purporting to prospectively waive the right to seek an award of attorneys’ fees and costs.”); Berstein v. Berstein, 498 So. 2d 1270, 1272 (Fla. 4th DCA 1986) (“The law is clear that the parents may not contract away the rights of their child for support.” (quoting Armour v. Allen, 377 So. 2d 798, 799-800 (Fla. 1st DCA 1979))); Engelsen v. Landers, 699 So. 2d 1031, 1032 (Fla. 4th DCA 1997) (“The point of Bernstein is that if the parents cannot contract away a court's ability to act in the best interests of their child, then they cannot contract away one party's ability to obtain an advocate to see that the full story is developed in a child related proceeding.”) [. . .].”
So, while parties might agree to waive attorney’s fees, this waiver may be disregarded by a Court when there are issues involving the children because a parent’s ability to hire a lawyer to advocate for the best interest of the children is paramount. If you have specific questions about your case, contact a Miami family lawyer for advice on how to proceed.