Written by attorney Dustin Michael Butler

What does it mean when a Marital Settlement Agreement provides attorney's fees in case of a default?

A common clause in marital settlement agreements provides for prevailing party attorney’s fees and costs in case of a default which must be enforced by one party. The question then turns on what is “default?"

In one recent case out of the Fourth District Court of Appeal the mother filed an emergency motion for temporary sole custody and parental responsibility and for contempt against the father. Ultimately the trial court denied her motion. Since the court denied the motion the court found that the father was the prevailing party. The court then went on to utilize Florida Statute §57.105(7) which provides for prevailing party attorney fees in cases of contract which have unilateral attorney fees provisions.

The application of this statute was an error in this case. The applicable clause in the contract, as is the case with most marital settlement agreements, provides the prevailing party attorney’s fees in the case of default by the other party. This is not a unilateral provision as it applies equally to both parties.

The District Court of Appeal further found that simply because the court didn’t find the father in default did not mean that the mother was in default. In this case, no one was in default, therefore no one was entitled prevailing party attorney’s fees. Of course, both parties would be entitled to recover attorney’s fees under the standard provisions in Florida Statute §61.16.

See, Sacket v. Sacket, 38 Fla. L. Weekly D1358a (Fla. 4d DCA 2013).

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.

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