A Marital Settlement Agreement is a contract between spouses that settles issues in a divorce. The Marital Settlement Agreement is typically ratified by the Court and made a Court Order in a Final Judgment of Dissolution of Marriage. If one party fails to fulfill their obligations under the Marital Settlement Agreement, the other party may try to enforce the agreement by bringing before the Court a Motion for Contempt and Enforcement. This is when many former spouses are shocked to discover how hard it can be to enforce a Marital Settlement Agreement.
There is a stark difference between support issues and property settlement issues when trying to enforce a Marital Settlement Agreement. Support issues include child support, alimony and attorney fees. Property settlement issues include dividing up property such as the marital home, bank accounts, retirement funds, and automobiles. Support issues are enforceable by the contempt powers of the court. This means a person who does not pay their child support or alimony, and who has the ability to pay, can be thrown in jail. A former spouse who does not divide property as agreed and then in a Final Judgment of Dissolution of Marriage ordered to pay, cannot be thrown in jail. In fact, the Court that ordered the property to be divided has very limited powers to enforce the Final Judgment.
Florida Family Law Rule 12.615 dictates how to enforce a child support or alimony award. First you must file a motion setting out the “essential facts” informing the other party how they have failed to comply with the court order. The motion then has to be served on the other party along with a Notice of Hearing that contains very specific language. The Notice of Hearing must inform the other party that if they fail to appear for the hearing they can be arrested and held in jail for up to 48 hours before a court must hold a hearing.
The contempt powers of a court are not available to enforce property settlement issues. For example, the Marital Settlement Agreement awards you $100,000 that is held in a retirement savings account by your spouse. Following the entry of the Final Judgment of Dissolution of Marriage, your now former spouse takes all the money out of the retirement savings account and conceals the cash. For this outrageous behavior that clearly violates the Marital Settlement Agreement and the order of the court contained in the Final Judgment of Dissolution of Marriage you might expect you can have a Motion for Contempt and Enforcement granted. You cannot. At least in the Fifth District which includes Brevard County. However, in certain situations criminal contempt can apply. Criminal contempt is initiated by a judge for a prosecutor and is beyond the scope of this article.
In the Fifth District Court case of Lynch v. Lockyer, 180 So. 3d 1120 (Fla. 5th DCA 2007), the court cited Byrne v. Byrne, 133 So. 3d 1082, (Fla. 4th DCA 2014) which stated, “The law is well-settled that contempt does not lie to enforce a property settlement arising out of a dissolution of marriage.” Lynch is a case from Brevard County in which the trial court used contempt to enforce a property settlement agreement. The appeals court reversed the Brevard County trial court and set aside the order finding Mr. Lynch in contempt. Since you cannot use contempt to enforce your property settlement agreement, your only option is to sue in civil court as a creditor against a debtor. Debtors have many defenses they can use against a creditor and a creditor may never collect the debt.
The solution for someone contemplating entering a Marital Settlement Agreement is to hire an experienced lawyer and avoid the problem completely. Anytime you enter a contract you must consider what your options will be if the other side does not perform as agreed. A Marital Settlement Agreement is no different. You must look ahead to enforcement issues when the Marital Settlement Agreement is being written.
At Mario, Gunde, Peters, Rhoden, and Kelley, we have written hundreds of Marital Settlement Agreements. We know how to write agreements that are enforceable in court. Even better we know how to write the agreement to avoid problems all together.
We are your local law firm with offices in Melbourne and Cocoa. We have been serving clients in Brevard County, Florida for over 40 years. Call today for a free consultation: 321-631-0506.
