Bresky Law Helps Former Husband Win Reversal of Judgment that Misapplied Canadian Prenuptial Agreement; Appellate Court Holds Proceeds of Marital Homes Are His Separate Property

May 11, 2022*

A family law attorney referred a client to Bresky Law for assistance with a complex divorce case involving a Marriage Contract (prenuptial agreement) that the client (the husband) had entered before his marriage in Canada. Bresky Law provided litigation support in the trial court and then represented the Former Husband in an appeal to Florida’s Fourth District Court of Appeal (“Fourth DCA”) after the trial court awarded the Former Wife half of the proceeds of two homes that the husband had purchased and maintained with his own separate funds in accordance with the prenuptial agreement.

The Marriage Contract had adopted the separate property regime of Quebec where each spouse would have separate ownership and control of his or her property, including all income and assets acquired during the marriage. Throughout the marriage, the parties kept their income and assets separate as contemplated by the prenuptial agreement.

After the couple moved to Florida, the husband bought several properties with his own separate money, including two marital homes that were titled solely in his name or the name of his trust. He also maintained the properties with his own separate, nonmarital funds. The wife eventually filed for dissolution of the marriage in Florida and pleaded for half of the proceeds of the homes, claiming that the Florida court should apply Florida’s law of equitable distribution as if the homes were marital property, rather than honoring the separateness of the homes under the separate property regime of the French Canadian civil code.

The Florida trial court reasoned that the homes would have been family patrimony assets if the couple had divorced in Quebec and that part of the proceeds would have gone to the wife in that situation. The Florida trial court then concluded that Florida’s equitable distribution system approximates the family patrimony articles, and ruled that the proceeds of the Former Husband’s homes are marital assets subject to equitable distribution under Florida law. The court divided the proceeds fifty-fifty, but treated all other property as separate according to the Canadian agreement.

Bresky Law represented the Former Husband in an appeal to the Fourth DCA and argued that the proceeds of the homes are separate, nonmarital assets under the Separation as to Property regime adopted in the prenuptial agreement in Quebec. We asserted that Florida law was inapplicable. We pointed out that the parties had filed a pretrial stipulation in the trial court agreeing that “the Family Patrimony Articles … do not apply to the partition of property for spouses who do not reside in Quebec at the time of dissolution of marriage,” so only Quebec’s Separation as to Property regime would apply. In the alternative, we argued that, even if Florida law were applicable, the proceeds must be treated as nonmarital under section 61.075(6), Fla. Stat., or they would at least be subject to unequal distribution under section 61.075(1), (3), Fla. Stat.

After reviewing the parties’ briefs and hearing an oral argument, the Fourth DCA held that the trial court erred in ruling that Chapter 61, Florida Statutes, applied to the distribution of the parties’ property at the time of dissolution, and therefore the trial court further erred in distributing the property under section 61.075. The Fourth DCA recognized that only Quebec’s Separation as to Property regime applies.

The Fourth DCA reversed the equitable distribution award in the final judgment and remanded the case with instructions for the trial court to award our client all the proceeds from the sale of both marital homes as his separate property. The Fourth DCA also conditionally granted our client an award of his appellate attorney’s fees, conditioned on the trial court determining that he should be awarded fees in view of the equities regarding financial need and ability under section 61.16, Florida Statutes.

We are delighted that this result will enable the Former Husband to receive the proceeds that rightfully belong to him and that he has an opportunity to receive reimbursement for his appellate attorney’s fees.

*Not final until disposition of any timely motion for rehearing.