Posted by Nydia Streets of Streets Law in Florida Divorce

When a party requests payment of attorney’s fees in a Florida family law case, must he or she allege the legal basis for requesting the fees, such as need and ability to pay and/or a prevailing party clause in a marital settlement agreement? This was an issue in the case Bergman v. Bergman, 4D2024-0526 (Fla. 4th DCA July 30, 2025).

The former wife filed a motion for contempt against the former husband for non-payment of alimony and child support. The trial court granted the motion, but denied the former wife’s request for statutory interest to attach to the sum due (reasoning that the former wife did not provide interest calculations for the arrears due), and denied her request for attorney’s fees and costs (reasoning she did not plead the basis for the fees such as the prevailing party clause in the marital settlement agreement or need and ability to pay). The former wife appealed.

Regarding the interest, the appellate court reversed, holding “The parties’ MSA, which the circuit court incorporated into the final judgment, pertinently provided: ‘Interest on Past Due Amounts. Any amounts that are past due, owed by one party to the other pursuant to this Agreement, shall bear interest at the statutory interest rate according to the State of Florida from date of default until paid in full.’ The former wife logically could not have provided interest calculations for the outstanding arrearages until after the circuit court had determined the arrearages’ amount.”

As to the attorney’s fee issue, the appellate court held the trial court abused its discretion. It noted “The former wife’s contempt motion clearly alleged she had ‘hired the undersigned attorney and agreed to pay him a reasonable sum for his services,’ and requested the circuit court to ‘[a]ward the Former Wife her costs and fees associated with the prosecution of the action.’ The former husband did not object to the former wife’s failure to allege the legal basis for that request. Thus, the former husband waived any such objection.” The case was remanded with instructions to correct both errors.

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