Florida favors settlement agreements of family law disputes. Parents may agree to take on obligations based on future events. That’s true even if a court otherwise couldn’t impose those obligations. This power parents have in collaborative divorce to make agreements makes collaborative special.
Purpose of Florida’s Divorce Statute Includes Promoting Settlement
Since July 1, 1971, the purposes of the dissolution of marriage statute haven’t changed. For 50 years, the purposes of Florida’s divorce statute have been:
(a) To preserve the integrity of marriage and to safeguard meaningful family relationships;
(b) To promote the amicable settlement of disputes that arise between parties to a marriage; and
(c) To mitigate the potential harm to the spouses and their children caused by the process of legal dissolution of marriage.
See 61.001(2), Florida Statutes.
Florida Favors Settlement
Florida law highly favors settlement agreements. Griffith v. Griffith, 860 So. 2d 1069 (Fla. 1st DCA 2003); Chovan v. Chovan, 90 So. 3d 898 (Fla. 4th DCA 2012). See also Koung v. Giordano, 346 So. 3d 108 (Fla. 1st DCA 2022); Robbie v. City of Miami, 469 So. 2d 1384 (Fla. 1985).
Separation agreements executed by husband and wife prior to divorce usually provide for payment to the wife of support or alimony; for support and custody of children; and for settlement of property rights existing between the parties. When such agreements are fairly entered into and are not tainted by fraud, overreaching or concealment, they will be respected by the courts.
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Provisions of a separation agreement or final decree relating to the support, care and custody of children are always subject to review and approval by the court, the guiding star being the best interest and welfare of the children.Sedell v. Sedell, 100 So. 2d 639 (Fla. 1st DCA 1958).
Parents May Agree to Obligations a Court Could Not Otherwise Order
Marital settlement agreements are construed the same as any other contract. Taylor v. Lutz, 134 So. 3d 1146 (Fla. 1st DCA 2014). See also Antunes v. Oliveira, 341 So. 3d 420 (Fla. 3d DCA 2022); Godwin v. Godwin, 273 So. 3d 16 (Fla. 4th DCA 2019); Ballantyne v. Ballantyne, 666 So. 2d 957 (Fla. 1st DCA 1996); Levitt v. Levitt, 699 So. 2d 755 (Fla. 4th DCA 1997). Parties can contract clearly and unambiguously to terms and conditions in agreements a court could not order on its own.
“It is well-settled in dissolution of marriage proceedings that the parties may enter into settlement agreements imposing obligations the trial court could not otherwise impose under the applicable statutes.”Herbst v. Herbst, 153 So. 3d 290 (Fla. 2d DCA 2014) (citing Taylor, 134 So. 3d at 1148)).
Because Florida favors settlement agreements, parents may agree to assume obligations a court couldn’t otherwise impose. The court’s inability to order provisions without parents agreeing to them doesn’t make their agreements unenforceable.
Parents May Agree to Assume Obligations A Judge Couldn’t Order.
Examples where divorcing parties agreed to obligations the judge wouldn’t have been able to order without their contract include:
- Obligation to pay for adult disabled child’s support. Schmachtenberg v. Schmachtenberg, 34 So. 3d 28 (Fla. 3d DCA 2010).
- Obligation to pay college expenses for their child beyond emancipation. Bingemann v. Bingemann, 551 So. 2d 1228 (Fla. 1st DCA 1989).
- Agreement to educate a child after the child reaches majority. Winset v. Fine, 565 So. 2d 794 (Fla. 3d DCA 1990); Holmes v. Holmes, 384 So. 2d 1295 (Fla. 2d DCA 1980); Kern v. Kern, 360 So. 2d 482, 486, n. 6 (Fla. 4th DCA 1978) (“Nothing in this opinion should be construed as limiting the power of a court to enforce a stipulated-to agreement between the parties in a dissolution proceeding.”).
- Obligation to pay nonmodifiable durational alimony even after the recipient remarries. Dills v. Perez, 330 So. 3d 989 (Fla. 5th DCA 2021). See also Taylor v. Lutz, 134 So. 3d 1146 (Fla. 1st DCA 2014) (bridge-the-gap alimony after the recipient remarries); Herbst v. Herbst, 153 So. 3d 290 (Fla. 2d DCA 2014) (permanent alimony after the recipient remarries).
- A $10,000 monetary sanction parents provided for in their marital settlement agreement, incorporated into a final judgment, if a parent travelled internationally with the child without first notifying the other parent. Antunes v. Oliveira, 341 So. 3d 420 (Fla. 3d DCA 2022) (the agreed monetary sanction was enforceable, but the trial court properly declined to enforce a provision prohibiting the offending parent’s future international travel with the child, after finding competent substantial evidence enforcing this provision wasn’t in the child’s best interests).
Opportunity to Be Creative and Flexible in Collaborative Divorce
In collaborative divorce, you and the other parent may consider specifying future events and milestones reasonably certain to occur. You may make creative and flexible agreements about changes when such events happen. What about for events not reasonably certain to occur?
Consider agreeing to alternative dispute resolution, when such events occur, if you can’t agree on how things should change. For example, you might agree to return to the collaborative process or go to mediation. Such conditions are enforceable contract conditions. See, e.g., Kiger v. Kiger, 338 So. 3d 1021 (Fla. 3d DCA 2022); Ferguson v. Ferguson, 54 So. 3d 553 (Fla. 3d DCA 2011).
Read more about harnessing collaborative contract power.
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