In the sunny state of Florida, where love often blossoms and thrives, couples are increasingly turning to postnuptial agreements as a safeguard for their assets and peace of mind. A postnuptial agreement, also known as a postmarital agreement, is a legal contract that spouses enter into after tying the knot. It outlines the division of assets in the event of a divorce or separation, offering a layer of financial protection and clarity.

While similar to a prenuptial agreement, which is created before marriage, a postnuptial agreement is crafted during the marriage. Here’s why many Floridians are choosing this option:

  1. Asset Protection: Couples can shield assets they’ve brought into the marriage, such as property, investments, or valuable possessions. A postnuptial agreement ensures these assets remain separate in the event of a divorce.
  2. Financial Clarity: By clearly defining each spouse’s financial responsibilities, including bill payments, joint account management, and contributions to the household, postnuptial agreements help prevent money-related conflicts down the road.
  3. Addressing Infidelity: Some couples include clauses that specify consequences for infidelity, such as forfeiting certain assets or rights in the event of a divorce.
  4. Safeguarding Business Interests: For couples with business ownership, a postnuptial agreement can protect those interests, outlining how the business will be divided or allowing one spouse to buy out the other’s share.
  5. Estate Planning: Postnuptial agreements can be a crucial component of estate planning, ensuring assets are distributed according to the couple’s wishes in the event of their passing.

In Florida, postnuptial agreements are legally enforceable as long as they meet specific requirements, such as being in writing, signed by both spouses, and containing full disclosure of each spouse’s financial situation. It is advisable for each spouse to have independent legal representation to ensure the agreement is fair and legally binding.

If you’re considering a postnuptial agreement to safeguard your future together, don’t hesitate to contact Attorney Gabriel Jose Carrera at 954-533-7593 or [email protected]. With his expertise and experience, Attorney Carrera can help you create a postnuptial agreement tailored to your unique needs and circumstances.

In the past, prenuptial agreements were frowned upon, viewed as catalysts for divorce. However, times have changed, and all 50 states now recognize the benefits of these premarital contracts. Instead of encouraging divorce, they empower couples to take control of their financial destiny should their marriage end. Florida, like other states, has its own set of rules governing these agreements. This article will guide you through Florida’s definition of a prenuptial agreement, its contents, and the factors that make it legally binding.

What Is a Prenuptial Agreement in Florida?

In Florida, a prenuptial agreement is known as a “premarital agreement.” It’s a contract between two people planning to marry that outlines how specific issues, such as alimony and property division, will be handled in the event of a divorce. Essentially, the agreement is a trade-off for the act of marriage with certain financial terms.

Who Should Consider a Prenuptial Agreement?

There are numerous reasons why you might want to consider a prenuptial agreement. It’s no longer just for the ultra-wealthy; many couples now use these agreements to ensure financial stability and predictability. People who may benefit from a prenuptial agreement include those who:

  • Own assets they want to protect from division during a divorce
  • Have children from a previous relationship and want to secure their inheritance
  • Own business interests they wish to keep separate from their spouse’s assets
  • Want to determine in advance if one spouse will pay the other alimony during separation or divorce

What Can a Prenuptial Agreement Cover in Florida?

In Florida, a prenuptial agreement can cover any issues that don’t violate the law or public policy. Typically, these agreements address each spouse’s financial rights and obligations during and after the marriage. Common topics include:

  • How property will be managed and controlled during the marriage
  • How property will be divided in the event of divorce, death, or other circumstances
  • Whether one spouse will pay the other alimony during separation or divorce, and if so, the amount and duration
  • How retirement plans and pensions will be handled
  • The distribution of life insurance policy proceeds
  • Whether either spouse is required to create a will to enforce the agreement’s terms
  • Which state’s laws will be used to interpret the agreement if necessary

Can a Prenuptial Agreement Determine Child Custody and Support in Florida?

In Florida, a prenuptial agreement cannot affect child custody or child support. Courts must calculate child support based on the parents’ current financial abilities and the child’s needs at the time of separation or divorce. Child support is considered the child’s right, and parents cannot waive their obligation to pay it. Similarly, judges determine child custody based on the child’s best interests at the time of separation or divorce. If parents wish to agree on child support or custody, they can do so at the time of divorce or separation, subject to court approval.

How Can You Ensure Your Prenuptial Agreement Is Enforceable in Florida?

Florida adopted the Uniform Prenuptial Agreement Act (UPAA) in 2007 to determine the enforceability of prenuptial agreements. For an agreement to be enforceable:

  • It must be in writing and signed by both spouses
  • It takes effect when the couple marries

A prenuptial agreement may be unenforceable if a spouse proves:

  • They did not sign the agreement voluntarily
  • The agreement was signed due to fraud, duress, or coercion
  • The agreement was unconscionable (“unreasonably unfair”) when signed, and the challenging spouse:
    • Was not given a fair and reasonable disclosure of the other spouse’s financial circumstances
    • Did not waive in writing the right to receive a fair disclosure of the other spouse’s assets and debts
    • Did not have or could not reasonably have had knowledge of the other spouse’s financial circumstances

To prove that a prenuptial agreement was not signed voluntarily, the challenging spouse must show they either did not sign the agreement at all or only signed it due to fraud, duress, or coercion. For example, a judge may find an agreement unenforceable due to fraud if one spouse hid assets from the other when they signed the agreement.

If you need assistance with your prenuptial agreement or have questions about Florida’s laws, don’t hesitate to contact Attorney Gabriel Jose Carrera at 954-533-7593 or [email protected].

Every family law practitioner in Florida and anyone considering a divorce is once again waiting on the Governor’s decision. Last year, Governor DeSantis let a bill die on his desk on July 1, 2022, which would have altered and removed permanent periodic alimony. This year, all eyes are on Senate Bill 1416 to see if it will pass into law or face the same fate.

What Changes Does Senate Bill 1416 Propose?

The bill addresses several key areas: it aims to eliminate unforeseen changes in modifications, provide a clearer definition of supportive relationships, and most notably, reform alimony laws. If signed into law, SB 1416 would bring significant changes to alimony in Florida, ending permanent alimony and introducing a new approach focused on fairness, individual circumstances, and encouraging self-sufficiency.

These changes are poised to reshape divorce settlements and alimony awards. This blog will explore the critical alimony changes introduced by SB 1416 and what they could mean for you, whether you’re contemplating divorce, currently in the process, or considering modifying your existing alimony arrangement.

The End of Permanent Alimony in Florida

One of the most significant changes in SB 1416 is the elimination of permanent alimony. Instead, Florida will recognize four types of alimony:

  • Temporary
  • Bridge-the-gap
  • Rehabilitative (with a new maximum duration of 5 years)
  • Durational

These types of support can be awarded as lump-sum payments or periodic installments, depending on the specifics of the case.

New Considerations in Alimony Awards

The proposed law introduces several additional factors for courts to consider when determining alimony. Courts must now provide a finding of fact not only for the type of alimony awarded (if any) but also the basis for its duration. The bill codifies existing case law by establishing that the burden of proof for need and ability to pay rests on the party seeking alimony. Additionally, it specifies that securing alimony with life insurance requires special circumstances.

Courts must also consider the anticipated needs and necessities of life post-litigation, not just the lifestyle during the marriage. Factors such as a party’s mental health (whether permanent or temporary), their ability to gain skills or education for self-support, and the economic consequences of adultery are now included in the considerations.

Implications for Alimony Seekers

If you’re seeking alimony, you might need to provide substantial evidence of your need for support. The bill does not change or clarify the definition of “need,” which remains a point of contention among District Courts (a potential issue for the Supreme Court to address). Unless you are of retirement age or unable to work, you will likely be expected to seek employment, supported by medical records or expert testimony if you claim incapacity.

Changes to Durational Alimony

The new law also revises the structure of durational alimony. It cannot be awarded in marriages lasting less than three years. The duration of alimony is now capped at 50% of a short-term marriage (less than 10 years), 60% of a moderate-term marriage (10-20 years), and 75% of a long-term marriage (over 20 years).

For the first time, a formula for calculating the amount of alimony is introduced. Previously, courts had broad discretion as long as the payor was not left destitute. Now, durational alimony is determined by reasonable need or up to 35% of the difference between the parties’ net incomes, whichever is less.

Fort Lauderdale & Miami Alimony Attorney

The potential introduction of SB 1416 marks significant changes in Florida’s alimony landscape, emphasizing fairness and self-sufficiency while acknowledging the financial needs post-divorce. Understanding these changes and how they apply to your situation can be complex.

Maria Indelicato, a family law attorney at Aaron Delgado & Associates, is here to help. With extensive knowledge and experience in Florida family law, Maria can provide insights into these reforms, their potential impact on your case, and guide you through your family law matters with compassion and expertise.

Don’t navigate these significant changes alone. Reach out to Maria for the legal advice and support you need during this transitional time. Contact Maria today to schedule a consultation and begin the process of understanding and addressing your unique family law needs.

My name is Attorney Gabriel Carrera, and I am here to help you. Call my law firm to set up a free 15-30 minute consultation to review your case and get a quote. Please call 954-533-7593 to take the first steps toward your dissolution of marriage!

An uncontested divorce typically takes about 6-10 weeks after both spouses have signed and filed all necessary documents with the court. In contrast, a contested divorce can last anywhere from 40 days to several months or even years, depending on whether it goes to trial.

The type of divorce significantly impacts its duration. A simplified divorce is usually straightforward and quick, while a contested divorce often requires more time, emotional investment, and financial resources.

Residency Requirements for Divorce in Florida

Regardless of the type of divorce, one or both spouses must meet the residency requirements to initiate the legal process. This means residing in Florida for at least six months before filing.

Florida Divorce Waiting Period

Florida divorce laws mandate a 20-day waiting period after filing, during which the responding spouse has an additional 5 days if mailed via USPS. Known as the “mailbox rule,” this period allows spouses to reconsider their decision to end the marriage and attempt reconciliation.

How Long Does the Divorce Process Take?

The average time to finalize a divorce varies based on the type of dissolution:

Simplified Divorce: Approximately 30 days.

Uncontested Divorce: Up to 4 months.

Contested Divorce: From 9 months and longer.

Mediated Divorce: Around 5 months on average.

Every couple filing for divorce in Florida aims to complete the process as quickly and smoothly as possible. However, factors such as disagreements over property division or child custody can delay proceedings, sometimes extending the timeline beyond a year.

Simplified Divorce Timeline

A simplified divorce usually takes about 30 days, not including the time spent preparing the necessary forms. To qualify for a simplified divorce in Florida, spouses must meet these criteria:

Agree to the simplified divorce process

Meet the residency requirements (reside in Florida for at least 6 months before filing).

Have no children together (and the wife must not be pregnant).

Waive alimony.

Pre-arrange the division of marital property.

Once both spouses sign and file the petition and related financial documents, the court will set a hearing date at least 20 days later. If the paperwork is correctly completed, the court will dissolve the marriage.

Contested Divorce Timeline

A contested divorce in Florida can take several years and involves significant judicial intervention. The process typically includes the following steps:

Filing the petition to start the divorce proceedings

Serving the spouse, which can take up to 3 weeks.

The defendant’s answer, due within 20 days.

Financial disclosure, which can take about 3 months.

Mediation, usually occurring around 5 months after filing.

Final hearing, approximately 5-6 months after starting the case.

Delays in financial disclosures and testimonies are common strategic defenses used to increase attorney fees, postpone child support payments, or hide assets.

Uncontested Divorce Timeline

An uncontested divorce in Florida generally takes 2-3 months, based on the spouses’ willingness to cooperate and reach a mutually beneficial agreement. To file for an uncontested divorce, both parties must agree on key issues like property division, child custody, and spousal support. This process may take about 3 weeks to prepare. After filing, the waiting period for the final hearing begins, which usually does not exceed 3 months. Typically, uncontested divorces are finalized within 4 months.

Divorce with Children in Florida

When a divorce involves children, the process can proceed in two ways:

Uncontested Divorce: If the parties agree on custody, child support, and parenting plans, the procedure takes less than 4 months.

Contested Divorce: If there are significant disagreements on child-related issues, the divorce can take from six months to several years, depending on the case details.

Finalizing the Divorce

A divorce is considered final after the court issues a divorce order at the final hearing. In uncontested divorces, the final hearing occurs about 6-8 weeks after the process starts. For contested divorces, it often takes 5-6 months to schedule the final hearing. The hearing itself can be brief or last several hours, depending on the issues to be resolved.

Tips for a Quick Divorce in Florida

To expedite the divorce process, spouses should:

Ensure that all divorce documents are correctly filled out.

Cooperate to reach a mutually beneficial agreement.

Ensure the agreement complies with local legislation.

Monitor the court’s workload.

Amicably resolving issues related to property division and child custody is crucial for a fast divorce. Simplified and uncontested divorces can be finalized quickly (1-4 months), while contested divorces may take years.

How to Get a Quick Divorce in Florida

Divorce cases in Florida can be lengthy, often deterring spouses from ending their marriage. The main reason for delays is the inability to agree on key issues, leading to numerous court hearings, which are costly and stressful.

Spouses often lack knowledge of the divorce process and may struggle with completing divorce papers. Using online services can help at the beginning, but only a licensed attorney can represent you in court and fix any mistakes. With the right set of forms and instructions, the process becomes more manageable.

My name is Attorney Gabriel Carrera, and I am here to help you. Call my law firm to set up a free 15-30 minute consultation to review your case and get a quote. Please call 954-533-7593 to take the first steps toward your dissolution of marriage!

Usually, the decision to divorce is known or even made by both spouses. Their ability to cooperate largely determines whether the process will be smooth and inexpensive or stressful and costly. However, there are situations where only one person wants to end the marriage and has no way to communicate this to their spouse because they cannot be found. Are there options for a missing spouse divorce in Florida?

Fortunately, yes. The absence of one spouse doesn’t make the dissolution of marriage impossible. In such cases, you can file for divorce by publication.

What Is Divorce by Publication?

Divorce by publication involves notifying your spouse about the initiation of the divorce process through a newspaper publication. Normally, the process of service requires handing over paperwork to the other party for their response. However, when a spouse cannot be found, the petitioner can make a divorce announcement in a newspaper. This is considered a “last resort” and is granted by courts only under special conditions.

Who Qualifies for Divorce by Publication?

Not everyone can qualify for a divorce through publication. Simply stating that you don’t know where your spouse is will not be sufficient. You will need to receive permission from the court and provide evidence that you have done everything possible to locate your spouse. This involves several steps outlined below.

How to Get a Divorce by Publication

Before publishing a divorce notice in a newspaper, you must exhaust all efforts to locate your spouse. Here are some steps you might need to take to provide the judge with solid evidence:

  • Record the last time you saw your spouse.
  • Send paperwork to your spouse’s last known address by regular and certified mail, and check for any returns. Additionally, visit their home and ask neighbors or locals for any information.
  • Contact their workplace and family members to ask if they know their whereabouts.
  • Search social media for clues. Also, check databases like the Federal Bureau of Prisons, U.S. military locator, Social Security Death Index, and the Department of Motor Vehicles.
  • Check criminal records, phone directories, and public records in areas where your spouse might reside.

Whatever efforts you make to find your spouse, keep a detailed record. If the judge reviews your evidence and concludes that your spouse cannot be located, you can start the process of service by publication in Florida:

  • Fill out all the necessary forms for divorce by publication.
  • File the paperwork with the court and wait for the court to issue a Notice of Action. The waiting period is about 60 days.
  • Publish the notice in one or two court-approved newspapers for 28 days.
  • If your spouse does not respond, you can ask the court to proceed with the divorce case.

Divorce by Publication with Minor Children

You can get a divorce with a missing spouse even if you have minor children, but you cannot obtain child support since the spouse’s location and income are unknown.

When filing for divorce with children, serving the other party is mandatory. If the parent is missing, you must use all available resources to locate and serve them with the paperwork. This is required even if your spouse has never been involved in your children’s lives.

If you’ve exhausted all efforts to find your spouse and still failed, you can request a divorce by publication from the court. After that, you can publish your notice in a court-approved newspaper. If the other parent does not respond, they can request a case review two years after the divorce is finalized.

How Long Does Divorce by Publication Take?

This type of marriage dissolution usually takes about 7-8 weeks due to several required steps and possible delays. First, you must wait for 60 days before making a publication. Then, the notice must be published for at least 28 days in a newspaper. After that, the divorce can be finalized.

How Much Does a Divorce by Publication Cost?

Divorce by publication is generally lengthier and more expensive than a simple uncontested divorce. Costs vary depending on specific circumstances. Cases with children tend to be more costly. The publication itself may cost around $100. Contact several court-approved newspapers to inquire about their rates for a 4-week publication. Additionally, you must pay a $408 filing fee along with court fees. If you cannot afford these costs, you can apply to have the fees waived.

For a free consultation, please call my office to schedule an appointment for a case evaluation. This typically takes 15-30 minutes. Call 954-533-7593 to schedule your free case evaluation today!

A top-priority measure from the Family Law Section designed to bring more uniformity to divorce proceedings is moving forward in the Senate.

The Senate Rules Committee unanimously approved SB 534, introduced by Republican Sen. Erin Grall, a family law attorney from Vero Beach.

“Senate Bill 534 acknowledges the complexities in divorce proceedings and addresses conflicting case law about the distribution of assets and liabilities,”

Grall explained during her brief presentation to the committee.

The Rules Committee had over 25 bills to review in less than two hours, and Grall’s presentation on SB 534 lasted under three minutes, with no questions from the committee members.

Key aspects of the bill include:

  • Requiring that any gift of real property between spouses must be in writing.
  • Establishing guidelines for courts to consider when determining the value of a “closely held business” in divorce proceedings.
  • Defining “extraordinary circumstances” for courts to consider when deciding on an interim partial distribution of assets during a dissolution action.
  • Veteran family law attorney Shannon L. Novey attended the committee meeting to show support from the Family Law Section.

SB 534 had previously passed the Judiciary Committee with a 10-0 vote on January 16, and the Children, Families and Elder Affairs Committee unanimously the following week.

A companion bill, HB 521, introduced by Republican Rep. Traci Koster, a family law attorney from Tampa, is currently on second reading in the House calendar after passing through three committees without any opposition.

Navigating the discharge of family court obligations in bankruptcy can be complex due to the interplay between the U.S. Bankruptcy Code and state laws. This article provides a detailed look at the relevant sections of the Bankruptcy Code and explains how courts determine whether these obligations are dischargeable. Although bankruptcy law governs the dischargeability of debts, the absence of federal domestic relations law means that state law and court decisions play a crucial role. Interestingly, both state and bankruptcy courts can determine the dischargeability of domestic relations obligations, though they must apply bankruptcy law in their analysis.

Bankruptcy Code Overview

When it comes to matrimonial debt, two primary sections of the Bankruptcy Code are key:

11 U.S.C. §523(a)(5): Excludes from discharge debts arising from Domestic Support Obligations (DSOs).

11 U.S.C. §523(a)(15): Excludes from discharge non-DSO claims, including obligations related to equitable distribution owed to a spouse, former spouse, or child.

The Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCPA) significantly modified these sections to reduce litigation over family issues in bankruptcy court. However, unintended consequences mean that courts must often review whether an obligation is a DSO under §523(a)(5) or falls under §523(a)(15) on a case-by-case basis. This applies to various agreements, including paternity settlements that address child support and time-sharing.

Domestic Support Obligation (DSO) — 11 U.S.C. §523(a)(5)

A DSO is defined by four components under 11 U.S.C. §101(14A):

The debt is owed to or recoverable by a spouse, former spouse, child, or a government unit.

It is in the nature of alimony, maintenance, or support. It was established before, during, or after bankruptcy through various agreements or court orders.

It has not been assigned to a nongovernmental entity unless for debt collection purposes by specified relatives.

In Chapters 7, 11, and 13, debts meeting these criteria are nondischargeable. If any element is missing, the debt may not qualify as a DSO, as seen in cases where obligations to third parties were not considered DSOs because the debt was not “owed to or recoverable by” the spouse or child.

Non-DSO Obligations — 11 U.S.C. §523(a)(15)

This section addresses non-DSO obligations, such as equitable distribution and property settlement claims not covered under §523(a)(5). Both state and bankruptcy courts can determine the dischargeability of these debts under bankruptcy law. While straightforward, the interpretation of these debts can vary, leading to different outcomes in similar cases.

Different Discharges and Results

Chapter 13 has two types of discharges: the full payment discharge under §1328(a) and the hardship discharge under §1328(b). The latter, requested when payments are not fully made, does not discharge domestic relations debts under §523(a)(15).

Unique Interaction of 11 U.S.C. §523(a)(15) and Chapter 13 Discharge

A domestic relations obligation fitting §523(a)(15) is generally dischargeable in Chapter 13, except under a hardship discharge. Non-debtor spouses can object to Chapter 13 plans, potentially preventing the debtor from getting a discharge if the plan is not approved.

The Attorney’s Role

Attorneys should identify the type of domestic obligation owed. DSOs are nondischargeable in Chapters 7, 11, and 13, while non-DSO obligations are nondischargeable in Chapter 7 but usually dischargeable in Chapter 13. Timing of bankruptcy filings in relation to family court cases is crucial, and careful review of court orders and agreements is necessary to determine whether bankruptcy is advisable and which chapter to file under.

Court’s Application of Law

The determination of whether a debt is a DSO depends on the intent of the parties, as outlined in various court cases such as Cummings v. Cummings and In re Benson. Courts consider factors such as the language of agreements, financial positions, and how obligations are treated for tax purposes.

Preparing for Bankruptcy

Spouses anticipating bankruptcy filings should ensure that obligations are described as DSOs in agreements to make them nondischargeable. Language in court orders should reflect the intent to provide support to ensure obligations are recognized as DSOs.

Attorneys’ Fees and Adversary Litigation

Litigation to determine dischargeability can be costly, with attorneys’ fees potentially added to the domestic relations debt. In Florida, fee awards can be based on contract or statute, with consideration of need and ability to pay.

Conclusion

Dischargeability actions in bankruptcy or state court are costly and uncertain, requiring thorough due diligence. Understanding the definitions in 11 U.S.C. §§523(a)(5) and (a)(15) and applying them to state court orders or agreements is essential for determining the advisability of filing for bankruptcy.

Navigating a divorce can be both emotionally and financially challenging. A critical aspect of this process is understanding the implications of attorney’s fees. In Florida, there have been significant developments in this area, particularly highlighted by the landmark case of Rosen v. Rosen. This article delves into the complexities of attorney’s fees in Florida divorces, emphasizing the key insights from the Rosen v. Rosen case.

Background of Rosen v. Rosen

Rosen v. Rosen is a pivotal decision by the Florida Supreme Court that addresses the issue of attorney’s fees in divorce cases. The case revolved around a dispute between a divorcing couple concerning the payment of attorney’s fees. The court’s ruling provided crucial guidance on the factors considered when awarding attorney’s fees and underscored the importance of equity and fairness in these matters.

Factors Considered by the Court

In divorce cases, courts have the discretion to award attorney’s fees based on various factors. The Rosen v. Rosen decision emphasized that the primary considerations are the financial need of one spouse and the ability of the other spouse to contribute. The court examines the financial resources of each party, including income, assets, and liabilities, to determine the appropriate allocation of attorney’s fees.

Equity in Awarding Attorney’s Fees

The concept of equitable distribution in divorce extends beyond just the division of marital assets. In Rosen v. Rosen, the court highlighted the importance of ensuring both parties have access to competent legal representation to achieve a fair and just resolution. This may involve ordering one spouse to contribute to the other spouse’s attorney’s fees, particularly when there is a significant disparity in financial resources.

Need-Based Assessment

A key takeaway from Rosen v. Rosen is the need-based assessment for awarding attorney’s fees. The court evaluates the financial needs of the requesting party and their ability to independently cover legal expenses. This approach aims to prevent a power imbalance in divorce proceedings and ensures that both spouses can effectively present their cases.

Contribution to Attorney’s Fees

Florida law acknowledges that one spouse may lack the financial means to cover their attorney’s fees entirely. In such situations, the court may order the other spouse to contribute to the reasonable fees incurred by the financially disadvantaged party. This contribution is determined based on a combination of need and the ability to pay.

Conclusion

The Rosen v. Rosen decision has significantly shaped the landscape of attorney’s fees in Florida divorce cases, emphasizing the principles of equity and fairness. Understanding the factors considered by the court, the need-based assessment, and the potential for contribution to attorney’s fees is crucial for individuals undergoing a divorce in Florida. Seeking legal guidance to navigate the complexities of attorney’s fees ensures that each party has the opportunity for fair representation, promoting a more just resolution in the challenging process of divorce.

In Florida, a defendant cannot be held in contempt for failing to pay debts not related to support. Property division awards are not enforceable by contempt; instead, they are treated as creditor-debtor issues. Default interest payments on equitable distribution awards, which are nonsupport-related debts, also cannot be enforced by contempt.

Florida family law rules permit trial courts to use contempt powers to enforce orders requiring a person to perform an act other than paying money, such as signing a title, deed, or other transfer documents like a mortgage. When the act in question does not involve payment, the court may use contempt to enforce property division awards.

Emergency ex-parte motions for child pick-up orders are generally disfavored unless there is a true emergency, such as a threat of physical harm to the child or the child being improperly removed from the state. Visitation disputes alone rarely qualify as emergencies.

Definition and Types of Contempt

Contempt is defined as a refusal to obey any legal order, mandate, or decree given by a judge, or any act that embarrasses, hinders, or obstructs the court’s administration of justice or diminishes its authority or dignity.

Direct Contempt: Contemptuous acts committed in the immediate presence of the court.

Indirect Contempt: Acts committed outside the presence of the court. Any doubt about whether contempt is direct or indirect should favor the contemnor.

Contempt can be classified as civil or criminal:

Criminal Contempt: Punitive and involves conduct intended to embarrass, hinder, or obstruct the administration of justice, used to vindicate the court’s authority and punish the offender.

Civil Contempt: Remedial, aimed at coercing compliance with a court order rather than punishing the offending party.

Understanding these aspects of attorney’s fees and contempt actions is crucial for navigating family law proceedings in Florida. By ensuring both parties have access to competent legal representation and appropriately using contempt powers, the court system strives to maintain fairness and justice.

In Florida, a court may award attorney’s fees to a party involved in any proceeding under Chapter 61. Chapter 61 encompasses actions such as dissolution of marriage, enforcement, modification, separate maintenance, time-sharing, support, and appellate proceedings. The fundamental purpose of awarding attorney’s fees is to ensure both parties in a family law proceeding can afford competent legal counsel, thereby maintaining fairness. Additionally, attorney’s fees may be awarded in paternity proceedings.

However, attorney’s fees are not generally authorized in domestic violence proceedings. An exception exists for injunctions for protection against domestic violence, where fees can be awarded under Section 57.105, which addresses frivolous filings.

The Florida Supreme Court in Rosen v. Rosen emphasized that the primary factors in determining entitlement and the amount of attorney’s fees and costs are the need and ability to pay. The court underscored that the intent of the Florida statutes is to ensure both parties can secure legal representation. Thus, trial courts must evaluate each spouse’s need for suit money against their ability to pay. Nevertheless, the court also instructed that all relevant circumstances should be considered, including the scope and history of the litigation, its duration, the merits of the respective positions, whether the litigation is primarily for harassment or stalling, and the existence of prior or pending litigation.

For a trial court to properly award attorney’s fees, the requesting party must provide evidence of both their need for fees and the other spouse’s ability to pay. This evidence can include testimony or exhibits, with financial affidavits commonly admitted. The assessment of “need” varies across Florida’s district courts of appeal; some focus on actual need, while others emphasize the disparity of resources between parties.

When considering a request for attorney’s fees, courts can evaluate all income and assets, whether marital or nonmarital. They must identify the source and amount of any imputed income considered in the fee request. Failure to consider evidence of ability to pay can result in reversal. The court must admit and consider financial affidavits or other documentation and evaluate the value of all assets, liquid or illiquid. In determining a party’s ability to pay attorney’s fees, the court must consider the impact of all financial obligations, including child support and alimony.