Posted by Nydia Streets of Streets Law in Florida Same-Sex Family Law

Many same-sex couples in Florida chose to enter cohabitation agreements before same-sex marriage became legal in the state. In one recent appellate case, one couple got married after the entry of an alleged oral agreement. When they filed for divorce, an issue arose as to the existence of this oral cohabitation agreement.

In Maio v. Clarke, 4D17-2305 (Fla. 4th DCA 2018), Ms. Maio appealed the trial court’s ruling that no oral cohabitation agreement existed before she and Ms. Clarke were married. She further appealed the court’s ruling that she should pay Ms. Clarke’s attorneys’ fees as a sanction. Evidence was presented at trial which indicated that the parties maintained individual bank accounts during the marriage and that Ms. Clarke gave a portion of her income to Ms. Maio during the marriage to pay household expenses.

Ms. Maio sought to apply a constructive trust to Ms. Clarke’s pre-marial retirement funds, alleging Ms. Clarke promised the account would fund the parties’ retirement years. Ms. Clarke denied that she made this promise, and the court, believing Ms. Clarke’s testimony, determined that no oral cohabitation agreement existed and entered judgment in favor of Ms. Clarke on this issue. As a sanction, the court awarded attorneys’ fees and costs to Ms. Clarke.

The appellate court upheld the trial court’s finding that no oral contract existed, reasoning it was within the discretion of the trial court to make findings of fact. The trial court did not believe Ms. Maio’s testimony, and this finding could not be disturbed absent some abuse of discretion. As to the attorneys’ fees, however, the appellate court reversed, finding there was no evidence in the record to support the fees as a sanction - these types of fees are awarded when there is a finding of bad faith and is limited to extreme circumstances where were not present here.

Cohabitation agreements are best when done in writing - relying on an oral contract leaves both parties at risk. How do you know if a cohabitation agreement is the right choice for you? Set a consultation with a Miami family law attorney to discuss what type of agreement is best for you.