Law and Rights

Debtor's Prison: Is an Award of Florida Family Law Attorneys' Fees Enforceable by Contempt?

There is much confusion among parties in Florida family law cases - and certain practicing attorneys - regarding which obligations are enforceable by the court's contempt powers.

One of the more common questions that arises is whether a client "has to pay" an award of attorneys' fees ordered by the court. Generally speaking, no one wants to pay "the enemy."

Long ago, our society determined that we should not have "debtors' prisons." In other words, a free person cannot be threatened with imprisonment for failure to pay his or her debts.

This right is expressly protected by Article I, Section 11 of the Florida Constitution. But, the courts have fashioned an exception to that rule for family support obligations, such as child support and alimony.

The courts have reasoned that the obligation to pay spousal or child support is a personal duty owed to both the former spouse or child and to society rather than a debt within the meaning of article I, section 11. See Gibson v. Bennett, 561 So. 2d 565, 570 (Fla. 1990).

"The courts have a duty to provide an effective, realistic means for enforcing a support order, or the parent or former spouse for all practical purposes becomes immune from an order for support." Gibson, 561 So. 2d at 570. This duty includes enforcement of a judgment through contempt because "a remedy at law that is ineffective in practice is not an adequate remedy." Id.

The use of contempt in a family law case is premised on the assumed necessity for the special protection and enforcement of rights growing out of the family relationship. See Fishman v. Fishman, 656 So. 2d 1250, 1252 (Fla. 1995). This rule has been extended to include the enforcement of payments of attorney's fees related to family law proceedings. Id. Attorneys' fees in family law cases are considered a form of support, as the expense of litigating matters pertaining to family obligations should be borne by the family in the same manner as other expenses.

Although the Court may employ its contempt powers to enforce payment of an attorney's fee award, that power is not without limits. Civil contempt is appropriate only if the party to be held in contempt has the present ability to comply with the court's order and thereby avoid incarceration or other sanctions. See Bowen v. Bowen, 471 So. 2d 1274, 1278 (Fla. 1985).

- Terrell Owens Sued In Fulton County For Child Support
On behalf of Edwards & Associates posted in Child Support on Thursday, July 7, 2011 In May, we discussed how the ongoing National Football League lockout could affect athletes' child support and alimony obligations. During the lockout,...

- Support Modifications For Pro Athletes Pending
On behalf of Edwards & Associates posted in Alimony on Tuesday, May 17, 2011 National Football League players were locked out in March. National Basketball League players are expected to join them in June. Players for both groups are at the mercy...

- Alimony Versus Child Support In Divorce
On behalf of Edwards & Associates posted in Alimony on Wednesday, April 6, 2011 April is now in full swing in Atlanta. For the optimists among us, that means opening day of the baseball season. For the realists among us, that means...

- Supreme Court To Decide Right To Counsel In Child Support Cases
On behalf of Edwards & Associates posted in Child Support on Wednesday, March 30, 2011 In the past, we have written about the problems many poor parents face when confronted with a contempt hearing for non-payment of child support. Although,...

- Former Major Leaguer Arrested For Not Paying Child Support
Former Major League outfielder Elijah Dukes has fallen on hard financial times. On Wednesday, he appeared in court, clad in an orange jumpsuit. He offered the Judge Liz Rice tears and apologies in a, but he could not offer the approximately $143 thousand...

Law and Rights