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Marital settlement agreement purporting to limit right to request pre-dissolution temporary support or fees violates public policy and is unenforceable.  [Added 1/14/12]

    Husband and Wife were married in 1991.  They separated and initiated divorce proceedings in 1998.  After entering a marital settlement agreement (the "MSA") that was never approved by the court, the spouses reconciled and their case was dismissed.  The MSA provided, inter alia, that in a subsequent action for interpretation or enforcement of the MSA the prevailing party would be entitled to attorney's fees and that in any action to terminate the marriage each party would be responsible for his or her own fees.

    In 2009 Wife filed a dissolution action.  Her petition did not mention the MSA.  Husband stipulated to temporary alimony and a temporary award of $15,000 in fees and costs.  Later Wife moved for an increase in temporary alimony and additional temporary fees and costs.  A hearing was set.  Husband then raised the MSA provisions as a defense to Wife's claims.  Based exclusively on the MSA, the trial court granted Husband's motion to strike the hearing on additional temporary alimony and attorney's fees.  Wife appealed.

    The Fourth DCA reversed, noting that its decision was controlled by Belcher v. Belcher, 271 So.2d 7 (Fla. 1972).  Under Belcher and Lashkajani v. Lashkajani, 911 So.2d 1154 (Fla. 2005), "public policy prevents a spouse from contracting away his or her obligation of support during the marriage."

    Regarding attorney's fees, although Lashkajani ruled that a provision in a pre-nuptial agreement for prevailing party fees in the event of action over the enforceability or validity of the agreement was enforceable, but the Court "did not reach the question of whether an agreement’s limitations on pre-dissolution support may likewise be enforced" and did not address "whether the trial court may order temporary attorney’s fees in spite of the agreement’s prevailing party provision."

    Florida has a long-standing policy against enforcing waivers of pre-dissolution support.  That policy "draws no distinction between prenuptial and postnuptial agreements."  Accordingly, the court concluded:  "We must continue to follow Belcher, which holds that pending dissolution of marriage, public policy and the statutory obligation of support permits the award of temporary attorney’s fees to a spouse even where an agreement provides that the parties will each pay their own attorney’s fees or that the prevailing party is entitled to fees in any litigation over the validity of the agreement."  (Emphasis by court.)  Khan v. Khan, __ So.3d ___ (Fla. 4th DCA, No. 4D11-460, 1/11/2012).

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