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).
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 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)).
Parents may agree to assume obligations a court couldn’t otherwise impose. The court’s inability doesn’t make the parties’ agreements unenforceable.
Examples of Agreements to Assume Obligations A Judge Couldn’t Order.
Examples where divorcing parties took on 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, Case No. 5D20-2094 (Fla. 5th DCA November 5, 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).
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, Case No. 3D21-1150 (Fla. 3d DCA Feb 9, 2022); Ferguson v. Ferguson, 54 So. 3d 553 (Fla. 3d DCA 2011).
For more about harnessing collaborative contract power, read here.