In today’s economy parties to a divorce often agree to sell the marital home in their marital settlement agreements.  Often the sale of the marital home takes considerable time following settlement to accomplish and the parties must make arrangements for payment of maintenance expenses pending the sale.  It is important to be very careful when making these estimations because both parties will be bound to the literal marital settlement agreement, even if certain events are not anticipated at execution.  For example, in one recent case the parties agreed to split prepayment penalties, real estate taxes, assessment, association fees, and insurance until the home was sold.  They also agreed to resolve a dispute with the roofing company at closing.  Ultimately, the Wife in this case resolved the dispute without input of the Husband.  The Husband argued that since he was not involved in the resolution of the dispute he should not be liable for half of the cost.  The Fourth District Court of Appeal found

[t]he MSA [marital settlement agreement] required that the dispute between the parties and the roofer be resolved, not that they both make the decision to resolve the dispute.” Reilly v. Reilly, 37 Fla. L. Weekly D1970 (Fla. 4^th DCA 2012).

The marital settlement agreement further provided that the Husband pay the Wife $15,177 from his share of the proceeds of the sale of the home for equitable distribution resulting from the distribution of retirement accounts to the Husband.  Unfortunately, there were no proceeds from the sale of the home and thus the Husband argued he should not be liable for that payment.  The appellate court again found for the Wife stating

[p]ayment from the closing proceeds is not a conditions precedent, only a source for the payment.” Reilly v. Reilly, 37 Fla. L. Weekly D1970 (Fla. 4^th DCA 2012).

When drafting a marital settlement agreement it is very important that you consider the implications and consequences of even simple clauses in the agreement.  If you are signing a marital settlement agreement it is imperative that you seek legal counsel.

See, Reilly v. Reilly, 37 Fla. L. Weekly D1970 (Fla. 4^th DCA 2012).

Dustin Michael Butler is an Attorney with Martin Law Firm, P.L., whose practice focuses in Family Law and Civil Litigation.  He is admitted to practice law in the State of Florida and the Federal Court for the Middle District of Florida. He primarily practices in Lee County Florida in Cape Coral and Fort Myers, Florida.

Unfortunately sometimes one spouse won’t follow the agreement they entered into.  This occurs for a variety of reasons, for example sometimes things have changed, sometimes they didn’t like one portion of the agreement all along, and sometimes they are just being difficult.

Regardless of the reason for the change it is important to follow the proper procedure.  If one spouse desires a change in the agreement it is necessary to file a Motion to Modify the agreement or to come to a written modification between the parties.  If your spouse does not file a Motion to Modify the agreement but unilaterally modifies the agreement it is necessary to file either a Motion for Contempt of Court or a Motion to Enforce. 

In one recent case the parties had agreed that the Husband would pay one half of their eldest child’s college expenses at a Florida University.  However, the son elected to attend an out of state school.  The mother desired that the Father pay one half of this expense.  However, the Court was without jurisdiction to order this because the mother did not modify the valid agreement. The Appellate Court held

absent a pending motion to modify, the trial court lacked authority to modify the terms of the marital settlement agreement by order that the former husband be required to reimburse the former wife for only one-half of the cost of the oldest son’s college education, based on what the cost would have been if the child had attended a state university in Florida on his Bright Futures scholarship.”   

See, Hartman v. Hartman, 37 Fla. L. Weekly D785 (Fla. 4th DCA 2012).

Dustin Michael Butler is an Attorney with Martin Law Firm, P.L., whose practice focuses in Family Law and Civil Litigation.  He is admitted to practice law in the State of Florida and the Federal Court for the Middle District of Florida. He primarily practices in Lee County Florida in Cape Coral and Fort Myers, Florida.

Sometimes in Florida a case will be referred to a general magistrate for a hearing or trial.  Often the rationale for this is to alleviate crowded Circuit Court dockets and for the parties to get a hearing sooner than they would in Circuit Court.  However, as is often the case in any court, one party may not like the outcome.  Rules of Procedure provide that an “exception” to the magistrates report must be filed within a specified time period.  If an exception is not timely filed, the Circuit Judge will sign an order adopting the magistrate’s findings and opinion.  Once this order is adopted by the Circuit Judge the only available appeal is to the district court of appeal.  Another Circuit Judge or Magistrate cannot change the order of the previous Judge or magistrate. Additionally, the opinion will only be overturned for errors of law; not simply because another Judge views the facts differently.

It is important to have an attorney represent you at all stages of a case.  Often times, there is nothing an attorney can do after the trial because the record of the court case will not support an appeal.  However, the attorney may have been able to achieve a different outcome if they had been hired at the beginning of the case. 

See, Drdek v. Drdek, 37 Fla. L. Weekly D420 (Fla. 4th DCA 2012).

Dustin Michael Butler is an Attorney with Martin Law Firm, P.L., whose practice focuses in Family Law and Civil Litigation.  He is admitted to practice law in the State of Florida and the Federal Court for the Middle District of Florida. He primarily practices in Lee County Florida in Cape Coral and Fort Myers, Florida.

More than likely yes, however the language in the agreement will be very important.  Florida’s Constitution provides for significant protections to homestead property provided certain requirements are met.  This protection extends to the sale of the home to purchase a new home.  However, in the case of a divorce, sometimes the parties agree to sell the marital home and divide the funds. 

Language in this agreement can be very important.  In a 1996 Fourth District Court of Appeal Case the husband agreed:

Judgments, Liens, and Lawsuits Satisfied: The Husband shall satisfy any and all outstanding judgments pending against him from his share of the proceeds received from the sale of the marital property.  Husband shall further be responsible for any and all potential claims, lawsuits, or judgments pending against him individually or in connection with his profession.”

Myers v. Lehrer, 671 So. 2d 864 (Fla. 4^th DCA 1996).  In that case the Court found that the Husband’s share of the proceeds were subject to claim by third party creditors.  However in a recent case out of the Third District Court of Appeal, the Court found different language to provide protection from creditors, specifically, from a previous marriage’s child support claim. In that case the parties agreed:

The parties agree that any lien or encumbrances on the marital home not specifically listed in the parties’ Marital Settlement Agreement or Addendum thereto as liens or encumbrances to be paid shall be the sole responsibility of the Husband and shall be paid from his share of the proceeds.  This shall include, but not be limited to, lien(s) from the Husband’s attorney and any loans taken by the Husband except those listed in the Marital Settlement Agreement and Addendums thereto.”

Kerzner v. Kerzner, 36 Fla. L. Weekly D2608 (Fla. 3rd DCA 2011). In Kerzner, the Husband, once the liens were satisfied, intended to reinvest his share of the funds into a new home.  The Court found the lack of the language “any and all outstanding judgments pending against,” from the Myers, case made it distinguishable and Husband’s share was protected from creditors other than creditors of the marital home. 

As previously mentioned, the specific creditor at issue here was his previous Wife claiming past due child support.  This is an important secondary point from this case that even child support claims are unable to collect on Florida Homestead. . 

See, Kerzner v. Kerzner, 36 Fla. L. Weekly D2608 (Fla. 3rd DCA 2011). See also, Myers v. Lehrer, 671 So. 2d 864 (Fla. 4^th DCA 1996). 

Dustin Michael Butler is an Attorney with Martin Law Firm, P.L., whose practice focuses in Family Law and Civil Litigation.  He is admitted to practice law in the State of Florida and the Federal Court for the Middle District of Florida. He primarily practices in Lee County Florida in Cape Coral and Fort Myers, Florida.