Posted by Nydia Streets of Streets Law in Florida Divorce

Entering a Florida marital settlement agreement is one of the best ways to save money and time, while resolving your case on terms that you can live with. To avoid expense that may be incurred as a result of unclear terms in your agreement, studying real appellate cases helps to avoid the pitfalls others have encountered in not including certain terms in their agreement. One such case is Kirschner v. Kirschner, 4D17-851 (Fla. 4th DCA 2018). 

The parties' divorce agreement specified that the wife would transfer her interest in the marital home to the husband in exchange for payment. Part of the payment was made at the time of signing the agreement, and the remainder was to be paid upon the house selling. If the house could not be sold within 5 years, the parties agreed the husband would make best efforts to refinance the property to obtain the money needed to pay the wife. 

Six years after they entered the agreement, the former wife filed a motion for enforcement, alleging the former husband was not abiding by his duty to pay her the remaining sum due. Evidence was presented that the home was listed for sale by the husband for amounts way above the fair market value, and that he had tried to refinance unsuccessfully. The husband admitted that he did not vigorously pursue a sale because the home was "underwater" and a sale would have left little to no equity for him to receive after paying the wife off. 

The trial court denied the former wife's motion for enforcement and she appealed. The appellate court sided with the former wife, holding it was error for the trial court to find the former husband had made diligent attempts to refinance. The appellate court also found the parties' agreement was ambiguous because it did not specify what would happen if the house did not sell within 5 years and the husband was unable to refinance. The trial court was instructed to hold a hearing on when the former husband should be obligated to make his payment to the former wife. 

If you are considering entering a Florida divorce agreement, contact a Miami divorce lawyer to help you include terms that may avoid future enforcement problems.