May 27, 2026

By Jeffrey T. Donner, Esq.

In Weber v. Weber, the Sixth District Court of Appeal reversed a trial court’s denial of attorney’s fees to a former wife who successfully defended against her former husband’s motion to enforce a marital settlement agreement.

That is the immediate holding.

But the more interesting part of the opinion is not just that the former wife won her fees. It is Chief Judge Traver’s special concurrence, which points to a recurring problem in Florida family-law fee litigation: courts often treat contractual prevailing-party fee provisions in marital settlement agreements as if they completely displace section 61.16, Florida Statutes. The concurrence questions whether that is really correct.

That matters.

Florida family-law fee law is not ordinary commercial fee law. A marital settlement agreement is a contract, and courts generally enforce contractual prevailing-party fee provisions. But Chapter 61 also contains a statutory fee mechanism based on need and ability to pay. The question is whether a standard prevailing-party clause means the statutory right disappears.

The majority did not need to decide that issue. But the concurrence explains why the issue deserves serious attention.

I. What Happened in Weber

The facts were somewhat unusual.

During the marriage, the parties purchased waterfront property in Boca Grande. The property apparently involved two pieces of title: the dry land containing the residence, and adjacent submerged land. The dry land was transferred into an irrevocable family trust. The submerged land was not.

When the parties later divorced, they entered into a marital settlement agreement. The MSA was incorporated into the final judgment. Importantly, the MSA said nothing about the Boca Grande property.

After the divorce, the trustee of the trust contracted to sell the property. During that process, the trustee discovered that the submerged land had never been transferred into the trust. The former husband then filed a motion to enforce the MSA. His theory was that the former wife should be compelled to execute a quitclaim deed transferring the submerged land to the trust.

The former wife opposed the motion. She won. The trial court denied the former husband’s motion to enforce.

The MSA also contained a prevailing-party fee provision:

“The prevailing party in any proceeding to enforce any provision of this Agreement shall be entitled to an award of attorney’s fees and costs incurred in such proceeding.”

After defeating the motion to enforce, the former wife sought fees and costs under that provision. The trial court denied the fee request. The Sixth DCA reversed.

II. The Majority’s Holding: If You Win the Enforcement Motion, You Are the Prevailing Party

The majority opinion is straightforward and correct.

The former husband filed a motion to enforce the MSA. The former wife defeated that motion. The MSA had a prevailing-party fee clause. Therefore, the former wife was entitled to recover the fees and costs incurred in defending against that motion.

The former husband tried to avoid that result by arguing, in substance, that the MSA did not actually cover the Boca Grande property. But that argument did not help him. He was the one who filed the motion to enforce the MSA. He invoked the agreement. He lost.

That was enough.

The court also rejected the idea that the former wife’s victory was merely procedural. This was not a case where the former wife won some temporary or technical ruling while the same claim remained alive. The issue raised by the former husband was whether the former wife violated the MSA by failing to transfer her interest in the submerged land. The trial court rejected that claim entirely.

That was a substantive victory.

The majority also rejected the “tie” argument. In post-judgment family cases, parties may return to court repeatedly over separate issues. Here, the former husband’s enforcement motion was one discrete dispute. The former wife later filed a separate motion concerning unrelated tax forms and a 529 plan. The trial court happened to rule on the old fee issue and the later discovery issue at the same omnibus hearing, but that did not convert the litigation into a tie.

The former wife won the Boca Grande enforcement dispute. That was the relevant proceeding for purposes of the fee clause.

III. Why the Majority Opinion Matters

The majority opinion is useful because it reinforces several practical points.

First, when a party files a motion to enforce an MSA containing a prevailing-party fee clause, that party is taking real fee-shifting risk. If the movant loses, the opposing party may be entitled to fees.

Second, courts should not dilute a fee entitlement by recharacterizing a complete substantive win as a “procedural” victory. If the motion asked the court to compel action under the agreement, and the court rejected that request, the respondent prevailed.

Third, post-judgment family litigation often consists of separate, self-contained disputes. A party who wins one enforcement dispute should not necessarily lose prevailing-party status merely because another unrelated post-judgment issue later arises.

That is the clean part of Weber.

But the concurrence is where the opinion becomes more interesting.

IV. The Special Concurrence: Does a Prevailing-Party Clause Really Eliminate Section 61.16?

Chief Judge Traver concurred fully in the majority opinion. But he wrote separately to address an issue the majority did not decide: the relationship between a contractual prevailing-party fee clause and section 61.16, Florida Statutes.

Section 61.16 allows a trial court, after considering the financial resources of both parties, to order one party to pay the other party’s reasonable attorney’s fees and costs in dissolution-related proceedings, including enforcement proceedings.

That statutory framework is different from a prevailing-party clause.

A contractual prevailing-party provision asks: Who won?

Section 61.16 asks: Do the parties have a similar ability to obtain competent counsel, considering their respective financial resources and the equities?

Those are not the same question.

The concurrence notes that several Florida appellate decisions have stated that section 61.16 does not apply in enforcement cases involving MSAs with prevailing-party fee provisions. Chief Judge Traver questioned that conclusion as an absolute rule.

And for good reason.

The statute expressly applies to enforcement proceedings. Florida Supreme Court precedent, especially Rosen v. Rosen, teaches that fee determinations in dissolution proceedings begin with section 61.16. Nothing in a standard prevailing-party clause necessarily says that either party is waiving the statutory right to seek fees under section 61.16.

That is the critical point.

A party can waive statutory rights. But waiver usually requires clear, express, knowing language. A boilerplate provision saying the prevailing party in an enforcement proceeding may recover fees does not necessarily say: “Each party waives any right to seek fees under section 61.16.”

Those are different things.

V. Why This Matters in Real Cases

This issue can matter enormously in real family-law litigation.

Suppose one former spouse has vastly greater financial resources than the other. Suppose the wealthier party files enforcement motion after enforcement motion. Suppose the less wealthy party needs fees to defend, but the contractual fee clause says only the prevailing party gets fees.

Under a rigid contractual-only rule, the less wealthy party may be forced to litigate first and seek fees later only if he or she wins. That may defeat the purpose of section 61.16, which is designed to ensure both parties have a similar ability to obtain competent counsel.

On the other hand, prevailing-party clauses are not meaningless. Parties enter MSAs. MSAs are contracts. Florida courts enforce them. A party who agrees to a prevailing-party provision should expect that provision to have consequences.

The hard question is not whether prevailing-party clauses are enforceable. They are.

The harder question is whether such a clause automatically eliminates the separate statutory fee authority of section 61.16 in every enforcement proceeding.

Chief Judge Traver’s answer is essentially: not necessarily.

That is the issue future cases need to confront directly.

VI. The Practical Lesson for Lawyers

For lawyers drafting or litigating marital settlement agreements, Weber provides several practical lessons.

If the agreement contains a prevailing-party fee provision, take it seriously. A failed enforcement motion may create fee exposure.

If a party wants to waive section 61.16 fees, say so expressly. Do not assume a standard prevailing-party provision will accomplish that waiver.

If a party wants section 61.16 fees despite a prevailing-party clause, preserve the argument clearly. Plead the statutory basis. Develop the financial evidence. Do not wait until appeal to suggest the statute should have applied.

And if the litigation involves multiple post-judgment disputes, separate them carefully. A party may prevail on one discrete enforcement issue even if other unrelated disputes are pending or later arise.

VII. Conclusion

Weber is a fee case, but it is not just a fee case.

The majority opinion enforces the plain consequence of a prevailing-party provision: the former wife defeated the former husband’s motion to enforce the MSA, so she was entitled to fees and costs under the agreement.

The special concurrence raises the broader and more important question: whether Florida courts have gone too far in treating contractual prevailing-party clauses as automatically eliminating section 61.16 in enforcement proceedings.

That question remains open.

And it should not be dismissed as academic. In family-law cases, fee provisions do not operate in a vacuum. They operate against the backdrop of Chapter 61, the financial realities of the parties, and the policy that both sides should have meaningful access to competent counsel.

Weber gets the immediate result right. But the concurrence identifies the issue that Florida courts will eventually have to answer directly.