Florida Favors Settlement Agreements: Collaborative Divorce

Collaborative Family Law: Florida Favors Settlement Agreements. 2 children in white robe sitting on yellow floor. Photo by Macau Photo Agency (Unsplash)

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 marital settlement 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 Robbie v. City of Miami, 469 So. 2d 1384 (Fla. 1985); Koung v. Giordano, 346 So. 3d 108 (Fla. 1st DCA 2022); Dozier v. Scruggs, 380 So. 3d 505 (Fla. 5th DCA 2024).

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).

Parties Who Settle Their Disputes May Take Control of Their Lives

Florida, as other states, favors settlement agreements. Settling cases conserves taxpayer and judicial resources. Moreover, whether parents or businesses, parties who settle their disputes determine their own fate, rather than leaving things up to a stranger.

As the court observed in a land dispute neighbors settled at mediation:

Mediated settlement agreements will be enforced whenever possible because the settlement of cases conserves the taxpayers’ resources invested in the judicial branch. See Robbie, 469 So 2d at 1385; see also Patrick, 745 So. 2d at 580. Further, settlement allows the parties to steward their own affairs—that is, to broker for themselves an acceptable outcome rather than invite into their lives the unwelcome involvement of the machinery of government and the risk of an adverse determination at trial.
Dozier v. Scruggs, 380 So. 3d 505 (Fla. 5th DCA 2024)

Marital Settlement Agreements Are Contracts

These general principles apply equally to settlement of family disputes. Spouses who take control of their lives in Collaborative Divorce:

conserve their resources,
avoid draining judicial resources,
reduce risk of and adverse outcome by going to court where a stranger decides their lives, and
broker for themselves and their family an acceptable outcome.

Spouses derive such control by harnessing their freedom to contract and the power contracts give them.

After all, marital settlement agreements are construed under Florida law the same as other contracts. 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).

Contract Law Principles

Contract elements

For an enforceable contract, there must be an offer, acceptance, consideration, and specification of essential terms. Moore v. Wagner, 377 So. 3d 163 (Fla. 2d DCA 2023); Jericho All-Weather Opportunity Fund, LP v. Pier Seventeen Marina & Yacht Club, LLC, 207 So. 3d 938 (Fla. 4th DCA 2016); Triton Stone Holdings, LLC v. Magna Bus., LLC, 308 So. 3d 1002 (Fla. 4th DCA 2020). The parties’ minds must meet on all essential elements. Greater NY Corp. v. Cenvill Miami Beach Corp., 620 So. 2d 1068 (Fla. 3d DCA 1993); Acosta v. District Board of Trustees of Miami-Dade Cmty. Coll., 905 So. 2d 226 (Fla. 3d DCA 2005).

A marital settlement agreement is subject to the law of contracts. Romaine v. Romaine, 291 So. 3d 1271 (Fla. 5th DCA 2020); Knowling v. Manavoglu, 73 So. 3d 301 (Fla. 5th DCA 2011). “Like any contract, a settlement agreement is formed when there is mutual assent and a ‘meeting of the minds’ between the parties — a condition that requires an offer and an acceptance supported by valid consideration.” Pena v. Fox, 198 So. 3d 61 (Fla. 2d DCA 2015).

The spouses’ minds must connect on all essential terms of their agreement. The essential terms must be firm or definite. De Cespedes v. Bolanos, 711 So. 2d 216 (Fla. 3d DCA 1998), even if all details aren’t definitely fixed. Blackhawk Heating & Plumbing Co., Inc. v. Data Lease Fin. Corp., 302 So. 2d 404 (Fla. 1974).

When their minds do meet, however, spouses may achieve solutions limited by their imaginations, the law, and, when their agreements involve kids, a judge’s duty to make sure the solutions are best for the kids. The next section highlights creative settlement agreements in which people achieved solutions a judge, absent the agreement, otherwise wouldn’t have been able to order.

Parents May Agree to Obligations a Court Could Not Otherwise Order

Parties can contract clearly 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:

Setting forth milestones over three years for a parent to receive increased timesharing with a child. Perseo v. Donofrio, 379 So. 3d 1183 (Fla. 4th DCA Feb. 7, 2024).
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).

Collaborative Family Law: Florida Favors Settlement Agreements. 3 multicolored birds in closeup photography. Photo by Damon Hall (Unsplash)

Settlement Agreements: Being 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).

Sampson Collaborative Law