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Lack of Due Process, Improper Burden-Shifting Sends Divorce Case Back to Trial Court

bagpiper.jpgIn one recent Florida divorce, a trial court’s failure to give the husband a meaningful opportunity to be heard in the case, as well as the court’s improper shifting of the burden of proof from the wife to the husband regarding whether Scotland law or Florida law should govern the divorce, forced the 5th District Court of Appeal to reverse the trial court and send the case back for a new trial.

Before the former couple married in Scotland, they executed a “Minute of Agreement,” which is the approximate equivalent of a prenuptial agreement. The couple’s agreement stated that, if they divorced, the court deciding the case should use Scottish law.

After 18 months together, the wife filed for divorce in Florida. The couple created a postnuptial agreement, in which the couple divided assets and pets, and the husband agreed to give the wife money for a house and plastic surgery. In her divorce action, the wife disavowed both agreements, arguing that both were created improperly.

When the husband, who was away on business in the Middle East, failed to follow certain court orders and was a “no show” at a pretrial conference, the court struck his pleadings, meaning that it refused to consider any evidence or arguments the husband presented in his documents.

After the trial court entered its order of divorce, the husband appealed. The appeals court sided with the husband, pointing out several flaws with the divorce order. First, a trial court may only take the extreme action of striking a party’s pleadings after it makes an express finding that the party’s misconduct that led to the penalty was “willful or deliberate.” By striking the husband’s pleading without first ruling that he had committed willful or deliberate misconduct, the trial court denied the husband a “meaningful opportunity to be heard” by the court, which is one type of denial of due process of law.

In addition to the due process problem, the appeals court also concluded that the trial court was in error when it used Florida law to decide the case. The couple’s agreement stated that their divorce should be decided using Scottish law. Florida law says that such agreements should be followed unless using the outside jurisdiction’s laws would yield an outcome that violated the public policy of this state. The party seeking to nullify such a “choice of law” provision must prove to the court that following the agreement would produce such a public policy violation.

In the present case, the trial court ruled that the husband failed to show why Scottish law should apply and went forward using Florida law. This was improper because the court shifted the burden to the wrong party (the husband). The wife had the burden to show that the provision should not apply, not the other way around.

One provision a prenuptial agreement can cover is to name the jurisdiction whose laws will govern the divorce. Couples entering into prenuptial agreements can reach agreement on this and any number of other issues regarding their future divorce, should such an outcome occur. To get reliable advice and representation regarding your prenuptial agreement or divorce, consult the South Florida family law attorneys at Sandy T. Fox, P.A. Our attorneys can help you in making the choices that work best for you and your family.

Contact us online or by calling (800) 596-0579 to schedule your confidential consultation.

More blog posts:

Jurisdiction Rules Prevent Father From Modifying Child Support in Florida, Fort Lauderdale Divorce Lawyer Blog, Nov. 24, 2014
Florida Court Orders Russian Mother to Adjudicate Child Support Case Overseas, Fort Lauderdale Divorce Lawyer Blog, Dec. 12, 2013