Attorneys, Don’t Commit Legal Malpractice by Not Paying Attention to Specific Language
Alimony for life doesn’t terminate upon remarriage when the settlement agreement is drafted incorrectly
Most people are aware that permanent alimony terminates upon death or remarriage of the recipient. Florida statute 61.08 (8) provides for such. However, a recent Florida 2nd District Court of Appeal opinion illustrates the problems that can occur when a party’s lawyer doesn’t write a settlement agreement with correct verbiage. In the recent opinion of Herbst v. Herbst, the settlement agreement written up after mediation stated: “Petitioner agrees to pay the respondent alimony… and continuing for the life of the petitioner. The parties agree that this alimony is non-modifiable.”
When the ex-wife/respondent remarried the following year, the ex-husband/petitioner stopped paying her alimony. She moved for contempt, and the trial judge tried to help the situation by declaring the provision ambiguous and denying her request. Unfortunately, the petitioner’s attorney made a crucial mistake in the drafting of the agreement. Nowhere within the settlement agreement did it say how or under what circumstances the alimony would terminate. In fact, a plain reading of the agreement indicates it is non-modifiable. Relying upon the existence of a statute that provides for such is an error that might cost this attorney some malpractice insurance payout. The 2nd DCA was not very sympathetic with the petitioner’s claim that he thought the alimony would terminate when his wife remarried. Given there was nothing in the agreement indicating such, and the agreement indicates it is non-modifiable, the appellate court indicated that the written language in the settlement agreement overrides statutory provisions. It held that the alimony was indeed payable through life. The case was remanded with instructions to the trial judge to calculate alimony arrearages and repayment provisions.
What does this opinion tell practicing attorneys?
Lawyers should pay more attention to specific language in agreements and be wary of these types of mistakes that can come back to haunt them. It is entirely probable that the ex-husband has a malpractice claim against his attorney and that we will eventually see litigation over such. The problem is, establishing damages when the exact amount of alimony that he will end up paying won’t be known until the former wife passes away. In fact, under malpractice law, since the damages have not yet been finalized, could it be argued that the malpractice claim doesn’t ripen until she passes away?
What does this opinion tell persons involved in or contemplating divorce? Hiring competent counsel is of utmost important when dealing with situations in which your financial future is at stake. Cutting corners and hiring low-cost help can sometimes come back to haunt you. Experience always trumps cost savings.
Image courtesy of freedigitalphotos.net by David Castillo Dominici