If you are familiar with divorce and/or divorce litigation, whether personally or even just at arm’s length, then you know that divorce can be expensive, and that one of the larger expenses can be attorneys’ fees. However, if you’re familiar with the process, then you also know that proceeding without a knowledgeable South Florida family law attorney can be an express ticket to an unsatisfying, and maybe even disastrous, outcome. So, if you are a person of limited means, what should you do? Start by reaching out to a skilled attorney, even in spite of your fears about fees. There may be several options available to you, including possibly obtaining an order from the judge in your divorce case that forces your spouse to pay some or all of your attorneys’ fees.
Sometimes, in an effort to limit the possibility of paying attorneys’ fees, one spouse may include a provision in a marital settlement agreement that relates to attorneys’ fees. When that happens, and you agree to it, it is important not to let your spouse over-use that provision and claim that it covers more things than it really does.
Here’s a case in point: K.L. and A.L. were in a long-term marriage that ended in divorce in 2014. As part of their divorce process, the couple worked out, and then signed, a marital settlement agreement (MSA). Paragraph 11 of that document said that each spouse “shall be responsible for their respective attorney’s fees, if any are incurred.” That’s all the paragraph said and that was the only paragraph that addressed attorneys’ fees.
Do you see where this could lead to a problem? What happens if your spouse refuses to do something, or refrains from doing something, as he/she promised in the settlement agreement, and you have to go back to court? Even though the root cause that brought you back to court was your spouse’s failure to perform as promised in the agreement, are you still “on the hook” for paying all of your attorneys’ fees?
That scenario allegedly happened in K.L. and A.L.’s case. The husband allegedly failed to hand over certain documents related to his pension, which the settlement agreement required him to do. The wife went back to court, seeking an order enforcing the MSA and demanding that the husband hand over the pension paperwork. She also asked the judge to order the husband to pay her attorneys’ fees as a penalty for his non-compliance with the terms of the agreement.
The judge sided with the wife in her enforcement action, but did not order the husband to pay any of her attorneys’ fees. The judge concluded that Paragraph 11 of the MSA created what the law calls a “waiver.” In other words, by agreeing to that provision, the wife forfeited her right to ask for any attorneys’ fees in any subsequent divorce-related action.
A Valid Waiver Requires Express Language in the Settlement Agreement
Fortunately, for the wife, she appealed. The appeals court reversed the lower court ruling, explaining that Florida law is fairly clear on this subject and it states that the only way that a spouse’s right to ask for attorneys’ fees in a future enforcement or modification action is waived is if the MSA explicitly includes language to that effect. Absent express language stating that outcome for modification or enforcement actions, the opportunity to pursue those fees is not waived.
The MSA that K.L. and A.L. signed contained only generally and broad language. “The provision does not address, let alone address with specificity, the issue of attorney’s fees in future enforcement proceedings,” the appeals court pointed out in its ruling for the wife. When that happens, a waiver is not triggered, meaning that the wife had not forfeited her right to ask for attorneys’ fees
There are many nuances and details that go into achieving a truly and fully successful outcome in your family law case. To make sure that your rights and your goals are properly protected, reach out to the South Florida family law attorneys at Sandy T. Fox, P.A. Our talented attorneys have been providing clients with reliable representation for many years. Contact our attorneys online or by calling (800) 596-0579 to schedule your confidential consultation.
More blog posts:
Recovering Your Attorneys’ Fees in Your Florida Paternity Case, Fort Lauderdale Divorce Lawyer Blog, Jan. 11, 2018
Alimony Award Equalized Incomes, Stymied Florida Wife’s Claim for Attorneys’ Fees, Fort Lauderdale Divorce Lawyer Blog, Oct. 6, 2015