Contempt Proceedings as Enforceable Mechanisms for Marital Settlement Agreements: Differences for Support Obligations v. Equitable Distribution
In a dissolution of marriage case, there are generally five major issues, which we identify according to the PEACE acronym. Those are: Parenting, Equitable distribution, Alimony, Child support, and Everything else. What you can expect is that many dissolution of marriage cases get resolved prior to going to trial, either at mediation or by entering into a Marital Settlement Agreement.
If the parties are splitting assets or money, it is important to keep in mind that the way those items are characterized can have consequences on whether they are enforceable by contempt. For example, if one party agrees to give to the other spouse a particular property or a sum of money, whether it is characterized as alimony, child support, or equitable distribution is very important. An obligation of support, such as alimony and child support, is enforceable by the Court through its contempt powers. However, failure to abide by an agreement which calls for a specific equitable distribution scheme is not enforceable by contempt.
But what happens if the agreement between the parties, or the final judgment adopting the same, does not specify whether a particular obligation is in the nature of support or part of equitable distribution? The court in Morrel v Morrel, 38 Fla. L. Weekly D22a (4th DCA 2013), was recently faced with this question. There, the former husband was required to maintain life insurance pursuant to a settlement agreement. When the former husband failed to do as he agreed, the former wife attempted to enforce the agreement through a contempt proceeding. The final judgment did not provide for alimony or other support for the wife. Because of this, but to no avail, the former husband argued that the life insurance was part of equitable distribution of property and therefore not enforceable by contempt. Due to evidence presented, the trial court agreed with the former wife that the life insurance was in the nature of support, and the 4th DCA affirmed. The result was that the husband was ordered “either to secure the insurance or to deposit cash of an equivalent amount in an account for the former wife’s benefit, should he predecease her.”
As you can see from the Morrel case, one way to avoid these situations is to understand the consequences of any provisions in the agreement, which you agree to sign. If you would like to avoid any ambiguity, be as precise and as clear as possible.
For more information, see Morrel v Morrel, 38 Fla. L. Weekly D22a (4th DCA 2013).
Liridona Sinani is an Attorney with Martin Law Firm, P.L., who practices Family Law and Civil Litigation. She is admitted to practice law in the State of Florida. She primarily practices in Lee County Florida in Cape Coral and Fort Myers, Florida.
If I attended a mediation pro se, do I have a chance for attorney review before my agreement is binding?
With the new year come new Family Law Rules of Procedure. In a recent Florida Supreme Court opinion, Florida Family Law Rule of Procedure 12.740(f), which provided for a ten day review period for counsel who was not present when a mediation agreement is reached, was deleted. The rule previously stated that if counsel of record for any party was not present at mediation when an agreement was reached, such counsel has ten days from the service of the copy of the agreement to serve written objections on the mediator, unrepresented parties, and counsel. However, beginning January 1st, 2013, this provision is no longer available.
What exactly does this mean and how does it impact you? Admittedly, mediation can be a costly event. As such, parties under dire financial circumstances may choose to forgo having representation at mediation and instead opt for their attorney to review the agreement and file any objections later. With this new opinion, parties no longer have that 10 day safety net provided by Rule12.740(f). What this means is that in order to ensure that are fully advised of your rights prior to reaching any binding agreements it is best to have counsel present at mediation. However, if your financial circumstances forbid you from doing so, then make sure to incorporate a provision in your mediation agreement allowing for attorney review before you sign the agreement.
For more information, see Supreme Court of Florida Case No. SC11-1454.
Liridona Sinani is an Attorney with Martin Law Firm, P.L., whose practice focuses primarily in Family Law. She is admitted to practice law in the State of Florida. She primarily practices in Lee County, Florida in Cape Coral and Fort Myers, Florida.
What is formerly known as “custody” is currently referred to as “time sharing” in Florida Statutes. When parties in a dissolution of marriage case have a minor child in common, there is a need to establish parental responsibility for the minor child. The parties will strive to agree on a parenting plan, including a a time-sharing schedule, which governs each parent’s relationship with his or her minor child.
For purposes of establishing parental responsibility and creating, developing, or approving a parenting plan, the court must decide all such matters in accordance with the best interests of the child. However, it is important to note that any modification to a determination of parental responsibility, a parenting plan, or a time-sharing schedule may not be modified without a showing of a substantial, material, and unanticipated change in circumstances in addition to a determination that the modification is in the best interests of the child.
What may seem as an emergency to you that warrants a modification of an existing time-sharing schedule may not persuade the judge if he or she does not consider it a substantial change in circumstances. For example, in a recent opinion by the First District Court of Appeals, the former husband and wife had time-sharing of their minor child, when the former husband sought to modify it on an emergency basis because his cancer was no longer in remission and his health was deteriorating. The trial court granted the former husband’s motion and modified, on a temporary basis, the final order establishing time-sharing, notwithstanding the fact that the basis supporting the modification was not unanticipated and the court had taken into consideration the former husband’s health when it first issued the final order.
The 1st DCA overruled the trial court’s decision on this point, holding:
“in order to obtain a temporary modification of custody, the moving party must establish (1) that there has been a substantial change in the condition of one or both parties, and (2) that the change in custody serves the best interests of the child … Furthermore, the substantial change must be one that was not reasonably contemplated at the time of the original judgment.”
Here, because the trial court acknowledged that it had taken the former husband’s health into consideration when it issued the final order, it was without power to grant a modification of such order.
Dissolution of marriage can be an emotional process, especially when children are involved. You want to ensure that you secure the best possible outcome for you and your children. That is why it is important to seek the advice of counsel from the inception of your dissolution of marriage case. If you currently have time-sharing of your minor child or children and are experiencing a change in circumstances that you feel warrants a modification of your existing order, make sure you speak to an attorney so that you are adequately prepared to meet your burden of proof to get a modification granted.
See Langdon v. Langdon, 37 Fla. L. Weekly D2061 (Fla. 1st DCA 2012).
Liridona Sinani is an Attorney with Martin Law Firm, P.L., whose practice focuses primarily in Family Law. She is admitted to practice law in the State of Florida. She primarily practices in Lee County Florida in Cape Coral and Fort Myers, Florida.
Divorce can be a very traumatic experience that affects many people’s lives. The moment when you are served with the divorce papers can be most difficult and confusing, especially if you do not expect it to happen. What does divorce entail? Where do you start? How is it going to affect you and your children? These are questions that might be going through your head as you begin this difficult process.
A divorce, simply, is when two people decide not to be married to each other any longer. Some people might make this decision overnight and for others this is a major decision that takes a lot of time and consideration. There are several steps in the divorce process that need to be taken. Below I will describe a simple outline of the process of dissolution of marriage. Of course, many more steps may need to be taken depending on the complexity of your situation. Those are details that should be discussed more fully with your attorney.
Dissolution of Marriage versus Divorce
“Dissolution of Marriage” and “Divorce” mean the same thing ~ the legal termination of a valid marriage. These terms are used interchangeably. Before 1971, in Florida there were nine statutory grounds for divorce. Essentially one of the spouses needed to prove the other’s “fault” ~ be it adultery, mental or physical abuse, or other acts by the spouse. In 1971, the Florida Legislature enacted the Dissolution of Marriage Act, making it no longer necessary to find fault for dissolution of marriage.
Now, there are two mutually exclusive grounds for dissolution of marriage in Florida: where the marriage is “irretrievably broken”; or where one of the parties has been “adjudicated mentally incapacitated” for at least three years. Either spouse may end the marriage whenever he or she believes that the marriage is irretrievably broken regardless of who was responsible. At the hearing for the dissolution the judge will still need to determine that the marriage is broken, but he will not inquire into the circumstances and will be satisfied with “I no longer love my spouse and want to be separated.” When one party denies that the marriage is broken or when there are minor children of a marriage, a judge may order counseling, postpone (continue) the action for three months to allow parties to reconcile, grant the divorce, or take other action that may be in the best interest of the parties and the children. Many judges will not order counseling if one of the parties is strongly opposed to it. But, when there are children involved, the counseling could be very beneficial to teach parents how to behave appropriately to minimize the traumatic experience for their children.
When and how do you start? What is involved?
When you, or you and your spouse together, decide that staying together is no longer possible, this is the appropriate time to consult with an attorney. The attorney will explain to you the process of divorce, what to expect, what difficulties might arise, what precautions you might want to take, and will generally help you better prepare for your future.
On average, dissolution of marriage can take four to eight months to complete, but in some instances it can take several years. Except in unusual situations, a dissolution action cannot be completed in less than 20 days.
The first stage of the process is called the Pleading Stage. Your attorney will file a formal document called a “petition” with the court on your behalf. The petition tells the court what you want to achieve and alleges the grounds for your dissolution. The party who files the Petition for Dissolution of Marriage is called the “Petitioner” and the party who responds is called the “Respondent”. The petition and the summons are the papers “served” on the responding party by the sheriff or other process server. The summons states that the party is now subject to a court’s jurisdiction, and that the respondent has 20 days to respond to the petition or their right to be heard on the case will be cut off, which means that the responding party has 20 days to either agree to the dissolution, or file a counterpetition. If a counterpetition is filed, then the petitioner has 20 days to answer the counterpetition. If you have been served with the Petition for Dissolution of Marriage, you should contact a lawyer right away because you only have 20 days to respond to a petition. The pleading stage usually takes about a month to complete.
The next step in the dissolution process is called Discovery. Discovery is a process that allows you to gather information about the other party that is necessary to complete your divorce. There are several tools that allow you to gather that information: oral and written depositions, interrogatories, requests for production, requests for admissions, and requests for mental or physical examinations. Be prepared for the whole discovery stage to take several months to complete.
Final Hearing Stage
After all of the pleadings are filed and all needed documents are obtained, your attorney should have enough information about your case to present it to the judge. The judge will schedule a case management conference, a meeting where the attorneys will decide on the last necessary matters and agree on the date for the Final Hearing.
If you plan to end your marriage in a divorce it does not necessarily mean that you will go to trial or will heavily debate your case. A large percentage of the family law cases settle outside of court by a mutually acceptable agreement.
In most Florida jurisdictions it is a requirement to try to resolve your settlement disagreements outside of the court. Your settlement negotiations might start early, even prior to filing your Petition for Dissolution of Marriage. If both you and your spouse enter into a voluntary settlement agreement and submit it to the judge, the agreement can be incorporated into your Final Judgment. If the parties settle, a final hearing can be avoided.
With the settlement agreement, the petitioner will need to prove that he or she has resided in Florida for the six months preceding the filing of the Petition for Dissolution of Marriage. This can be done by presenting a valid Florida driver’s license, a Florida voter’s registration card, or the testimony or affidavit of a third party.
Final Judgment Stage
After the final hearing and after the judge has ruled, one of the attorneys, usually the prevailing party, will draft the final judgment, will get it approved by the other party, and will send it to the judge for entry of the final judgment. If the opposing party makes no objections, the judgment is signed by the judge, filed in the clerk’s office, and copies are sent to each party or their attorneys.
The wife is entitled to change her name during the divorce. The name could be restored to a maiden name or could be changed to any new name desired. Also, if the wife wishes to continue to use her former husband’s name, she can.
Enforcement/Modification of Final Judgment
Even after the final judgment is entered, it does not mean that your case is over. One of the parties might appeal the judge’s final ruling. There also might be a support or visitation hearing to enforce the final judgment. A dissolution action is never complete until there are no more obligations between the parties.
Either party can petition the court to enforce or modify the final judgment by filing a motion or a supplemental petition. If one of the spouses refuses to abide by the final order, he or she may be held in contempt of court.
In Florida, a couple may be eligible to dissolve their marriage by way of a simplified procedure. These dissolutions are “do-it-yourself” and were designed so the services of an attorney may not be necessary. However, the simplicity of this procedure may still require legal counsel which we may be able to inexpensively provide in order to guide you through this process and ensure that no serious errors are made.
The simplified dissolution of marriage process is designed for couples who do not have dependent children and have agreed on a division of their property and debts.
A husband and wife can use the simplified dissolution of marriage only if:
- they both agree to the use of this form of dissolution proceeding;
- they have no minor (under 18) or dependent children;
- they have no adopted children under the age of 18;
- the wife is not pregnant;
- at least one of the parties has lived in Florida for the past six months;
- the parties have agreed on the division of all of their property and obligations; and
- the parties agree that the marriage is irretrievably broken and want to end their marriage.
If you do not meet the above requirements, then you must use the regular legal process. If your marriage is contested, it is important to discuss your case, facts and circumstances with an attorney qualified to assist you with these matters.