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Vexatious litigation in Florida divorce actions

On Behalf of | Oct 16, 2020 | Divorce

The difference between honest disagreement and bad faith claims

Couples who are in the process of divorcing rarely make it through without disagreeing on key legal issues. Disagreement can get heated and emotional, considering the personal nature of the dispute and the critical importance of decisions about child custody, alimony, child support and property division.

But sometimes a spouse in divorce brings claims in court in bad faith such as allegations against the other spouse that are untrue or outrageous, made to hurt or harass the other party, or meant to drag out the proceedings to increase legal fees and costs for the other side.

Bad behavior may justify an award of legal fees

The Fourth District Court of Appeal of Florida explained in Maio v. Clarke in 2018 that a trial court has an inherent power to order a party in divorce who has “exhibited egregious conduct or acted in bad faith” to pay the other spouse’s attorney’s fees (quoting Bitterman v. Bitterman). These awards are rare and “should be reserved for extreme cases in which a party litigates vexatiously and in bad faith.”

The court that makes such an award must make a written finding of bad faith, including the facts that support and justify the award.

Aspects of bad faith or egregious actions

Looking back to Bitterman, a 1998 Florida Supreme Court case, the court explained what bad faith or egregious conduct might look like in this context based on the inequitable conduct doctrine. The high court looked at cases from other jurisdictions, including the U.S. Supreme Court, that award legal fees based on bad faith and recognized aspects of behavior that may show it:

  • Callousness
  • Discrimination and oppression by the more powerful party
  • Vexatious or wanton actions

The negative nature of a party’s behavior during or before the proceedings may be relevant and the court may consider them both.



The LAW OFFICES OF FORREST & Forrest, PLLC represents individuals in Fort Lauderdale in high-asset divorce matters. Daniel Forrest is board-certified family lawyer and mediator serving the South Florida area.

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