Posted by Nydia Streets of Streets Law in Florida Divorce
In most cases, Florida family law judgments cannot make rulings based on future circumstances or events. This is because life changes and circumstances change frequently, so it is impossible to know in present-time whether or not a ruling made today is just or equitable when applied in the future. The recent appellate case Du Perault v. Du Perault, 4D18-1226 (Fla. 4th DCA May 1, 2019) affirms this concept.
The former husband appealed a final judgment of divorce, in pertinent part, as it related to a provision of the order which stated "in the event either party seeks enforcement of this Final Judgment or Parenting Plan for the other party's failure to comply, the defaulting party shall be liable to the non-defaulting party for all fees and costs incurred as a result of the default and enforcement of same." This provision of the final judgment essentially pre-judged that a party who violated the final judgment would pay the attorneys’ fees and costs of the other party in the future.
The appellate court agreed with the former husband that this provision was inappropriate, holding, “Section 61.16, Florida Statutes (2018), governs the issue of entitlement to attorney's fees in post-dissolution enforcement proceedings. Entitlement to fees, pursuant to section 61.16, requires inquiry into the parties' need and ability to pay. Other relevant factors may be considered in assessing fees, however, ‘the financial resources of the parties are the primary factor to be considered.’ In this case, because the final judgment contained a fee provision for future enforcement actions which failed to account for the parties' need and ability to pay, we reverse and remand to the trial court for correction of the enforcement fee provision within the final judgment.”
Schedule a consultation with a Miami divorce attorney to give yourself the best chance at resolving your case in a manner that protects your best interest. By hiring a lawyer, you may end up saving yourself more money than you think you will spend for necessary guidance through a sometimes confusing process.