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11/29/12 It's The Law: Out Of State Law Might Overrule Florida

Question:

I got divorced in another state and then moved to Florida. One of my friends tells me that part of my divorce judgment would not be permissible in Florida. He tells me I am bound by Florida law and the part of the judgment that would not be allowed in Florida will be unenforceable. Is he right?

Answer:

Your friend is probably wrong, due largely to the United States Constitution. Article IV, Section 1 of the United States Constitution provides "Full Faith and Credit shall be given in each State to the public Acts, Records and judicial Proceedings of every other State." It is a provision of the original Constitution and was intended to unify the Country while preserving the rights and powers of the states. The provision's primary goal was to ensure judgments by courts of one state would not be ignored by courts of other states. The clause is used primarily to enforce judgments.

The "full faith and credit" clause was applied in the recent dissolution of marriage case of Weiss v. Weiss. In Weiss, the parties were divorced in 1972 in Cook County, Illinois. Part of their settlement agreement, incorporated into the divorce judgment, required the husband to maintain a $100,000.00 life insurance policy with his ex-wife as beneficiary. The husband borrowed against the policy and the ex-wife went back to an Illinois court to enforce the judgment.

The ex-husband did not show up at the hearing on the wife's enforcement action. The court entered an order holding him in contempt of court and awarding his ex-wife $68,869.74 representing balances of loans under the life insurance policy, $2,597.46 to reimburse wife for re-instatement fee premiums and loan interest she paid, and $10,000.00 in attorney's fees, plus contempt until paid at the "statutory rate."

The wife arranged for the order to be domesticated in Florida. That means, the order became the equivalent of a Florida court order. The wife then sought enforcement in Lee County and the Lee County court entered judgment for the amount due under the order and granted wife's request to enforce the contempt portion of the order. The ex-husband appealed.

The ex-husband argued that the insurance provision of the settlement agreement was property settlement and not support. Under Florida law, support provisions are enforceable by contempt but property settlement provisions are not. Remedies available to enforce a property settlement agreement are limited to those available to creditors against debtors generally. That might include garnishment, attachment of the ex-husband's property and the like, but not contempt of court.

The appellate court rejected the husband's argument. It ruled that under the "full faith and credit" clause, the Illinois judgment must be enforceable in Florida, even if a Florida court would not have authority to enter the same judgment in an original proceeding.

The ex-husband also argued that the trial court wrongly entered judgment for interest based on interest accruing on judgments in Illinois as opposed to the lower interest rate accruing on Florida judgments. Again, the appellate court disagreed. The court explained that the Illinois court had included an award of interest based on the "statutory rate" in its order. That meant the rate in Illinois. But, the court explained that after the order was domesticated, effectively becoming a Florida court order, the Florida statutory interest rate would apply from that point forward.

Finally, the ex-husband argued that because the public policy of Florida under Article I, Section 11 of Florida's Constitution does not allow incarceration to pay a debt, a Florida court may not resort to the contempt to punish the ex-husband's failure to abide by terms of the property settlement provision. This last argument also failed because the appellate court pointed out that there are a number of coercive civil sanctions available to enforce a contempt order, including incarceration, garnishment of wages, ordering additional employment, filing of reports, fines, and revocation of a driver's license. Since no court had ordered the husband be incarcerated, the husband's argument was deemed premature.

Based upon the Weiss case, it would appear that your friend's advice is wrong. But, the exact facts of your situation will determine the outcome. I suggest you discuss your case with an experience attorney for legal advice as to what might happen if you fail to comply with the terms of your divorce judgment.

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