USA – FLORIDA Law and Practice Contributed by: Elisha D. Roy and Carolyn Ware, Sasser, Cestero & Roy
Premarital and postnuptial agreements may not con ‑ tract with respect to children’s issues or temporary support. Pre and Postnuptial Agreements Regardless of Entry Date All pre and postnuptial agreements are interpret ‑ ed and construed like any other contract. See Famiglio v Famiglio , 279 So. 3d 736 (Fla. 2d DCA 2019) (asserting same in the context of a prenuptial agreement); Chipman v Chipman , 975 So. 2d 603 (Fla. 4th DCA 2008) (asserting same in the context of a postnuptial agreement). It is important to understand that, when interpreting any agreement, the court must first look to its plain language to determine the parties’ intent. Famiglio, at 739. When interpreting the agreement, the court may only consider extrinsic evidence outside of the agreement’s plain language, known as parol evidence, when the agreement contains an ambiguity. Id. Florida law staunchly supports parties’ rights to con ‑ tract. It is never the role of a trial court to rewrite a contract to make it more reasonable for one of the parties. Id. Famiglio is a key case explaining, in immense detail, the process trial courts must employ when interpreting and construing marital agreements. 2.6 Cohabitation: Division of Assets Between Unmarried Couples In Florida, no legal rights or obligations are established from a non-marital, cohabitation relationship. Posik v Layton , 695 So. 2d 759 (Fla. 5th DCA 1997). In Castetter v Henderson , 113 So. 3d 153 (Fla. 5th DCA 2013), the court determined that “a court may, however, impose a constructive trust to do equity between unmarried cohabitants”. Evans v Wall , 542 So. 2d 1055, 1056 (Fla. 3d DCA 1989). The party seek ‑ ing to establish a constructive trust “must establish it by proof to the exclusion of all reasonable doubt”. Smith v Smith , 108 So. 2d 761, 764 (Fla. 1959); see also Harris v Harris , 260 So. 2d 854, 855 (Fla. 1st DCA 1972). “Before a constructive trust in real property will be created, the person claiming such interest must
prove beyond a reasonable doubt by clear and con ‑ vincing evidence those factors which give rise to the trust”. The four elements that must be established for a court to impose a constructive trust include: (i) a promise, express or implied; (ii) a transfer of property and reliance thereon; (iii) a confidential relationship; and (iv) unjust enrichment. Provence v Palm Beach Taverns, Inc. , 676 So. 2d 1022, 1024 (Fla. 4th DCA 1996); Heina v LaChucua Paso Fino Horse Farm , Inc., 752 So. 2d 630, 637 n. 4 (Fla. 5th DCA 1999). Cohabitants do not acquire rights by virtue of length of cohabitation. Cohabitants may acquire rights to child support by virtue of children born of the relationship upon the establishment of a support obligation. In addition, while not called cohabitation, Florida Statute 61.14 recognises a supportive relationship as a basis to modify alimony. Essentially, the paying spouse must prove the spouse who is receiving ali ‑ mony is living with another person like married cou ‑ ples, sharing in property ownership, bank accounts, life activities, but not actually marrying to avoid the termination of alimony that comes with remarriage. 2.7 Enforcement of Financial Orders Many different forms of relief exist when a party fails to comply with a financial order. However, the nature of the financial order can dictate the types of relief avail ‑ able to the enforcing party. These remedies can be used to enforce international financial orders, subject to the applicable statutes and rules. Civil Contempt A party may move the court to hold a non-comply ‑ ing party in civil contempt. Civil contempt is used to coerce an offending party into complying with a court order rather than to punish the offending party for a failure to comply with a court order. Johnson v Bednar , 573 So. 2d 822 (Fla. 1991). A support award can be enforced by contempt proceedings and incarceration. Braswell v Braswell , 881 So. 2d 1193, 1198 (Fla. 3d DCA 2004). A party’s incarceration for violation of a support order is meant purely to coerce compliance, not to punish. Therefore, a party must be released once they have complied with their support obligation(s). However, orders concerning property awards cannot
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