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What Does A “Prevailing Party” Provision Mean in Your Marital Settlement Agreement?

Many divorce actions today are settled between the parties, either entirely as to every issue raised in the divorce or partially, addressing only certain contested issues in the divorce. These settlement agreements are written agreements signed by both parties and are usually incorporated into the final divorce judgment.

Marital settlement agreements often include a provision that determines who will pay the other party’s attorney’s fees if further litigation is initiated after the divorce. One of the options possible is a fees provision commonly known as the “prevailing party” attorney’s fees provision (19-21). This means that regardless of each party’s financial resources, the party who prevails in the post-divorce litigation will pay all of their ex-spouse’s attorney’s fees. The prevailing party is generally the party who wins on the significant issues in the post-divorce litigation.

If you are the more financially advantaged party, you are probably eager to include this provision in your marital settlement agreement. Perhaps you had to pay all or a substantial portion of your former spouse’s attorney’s fees during the divorce because of the disparity in your incomes.   Including a prevailing party fees provision in your marital settlement agreement could spare you from having to pay your former spouse’s fees and your own fees if you prevail in the post-divorce action.

If you are the less financially advantaged party, you should give careful consideration to including a prevailing party fees provision in your marital settlement agreement. The court will view the provision as a contract to be enforced, regardless of how devastating it may be to your financial well-being. If you voluntarily enter into this sort of a fees agreement, the court can’t save you from your own decision later on. You will not be able to seek a fees award from your former spouse based on your need for a fees award and your former spouse’s ability to pay your fees. You will be legally bound by your prevailing party provision regardless of your current financial situation. If you refuse to allow a prevailing party fees provision in your martial settlement agreement, any future litigation fees award will likely be based on the same need and ability to pay criteria applied in your divorce case.

The Law Office of Jeanne Coleman has helped clients settle their divorce cases for over twenty-five years in the Tampa Bay community. Marital settlement agreements are legally binding contracts. Sometimes divorcing parties make the mistake of signing a marital settlement agreement without understanding how each and every provision will affect their future. It’s very important that you understand exactly what you are agreeing to and, equally important, that you can satisfy all of your obligations described in your marital settlement agreement. Before you sign a marital settlement agreement, call for a consultation with attorney Jeanne Coleman. We are available to advise you at: 813-253-2820