If you are involved in a divorce case and settle your case at mediation or at some point in the proceedings before trial, you should consider having a “prevailing party” attorney’s fee provision inserted into your marital settlement agreement. Such a provision provides that if either party has to file an action to enforce the terms of the marital settlement agreement, the prevailing party in the enforcement action shall be entitled to an award of reasonable attorney’s fees against the other party.
Generally, the award of attorney’s fees is governed by s. 61.16, Florida Statutes, which requires proof of the need for attorney’s fees of the requesting party and the other party’s ability to pay fees. Under this statute, a party could prevail in an action to enforce his or her marital agreement and still not obtain an award of attorney’s fees against the other party because the evidence established that the prevailing party had no need for such an award.
However, the purpose of a “prevailing party” attorney’s fee provision is to deter either party from violating the terms of the marital settlement agreement. Thus, the courts have interpreted this contractual provision to require an award to the prevailing party in an enforcement action even if the prevailing party has the ability to pay his or her own fees. In other words, the contractual provision that the prevailing party recovers attorney’s fees governs regardless of the evidence of need and ability to pay under s. 61.16, Florida Statutes.
If you are negotiating a marital settlement agreement, a “prevailing party” attorney’s fee provision may be important, particularly if you have concerns about your former spouse’s compliance with the terms of the settlement agreement after the divorce.