How Do I Enforce a Separation Agreement Not Filed in Court in Florida?

Full question:

Hello, I live in Florida. I lost my job and I am unable to afford a family law attorney. Tried legal aid service in my state. They are extremely busy so I am going pro se. Question: Husband and I married February 18, 1984. Separated 1997 after hand writing separation papers agreeing to child support for 1 disabled child now 20 y/o, alimony, and other particulars pertaining to mortgaged home in both our names. Monetary support was consistent until 1998 when the support stopped. I made numerous diligent searches to find him without success. January 2010 he was admitted to a local Tampa hospital with Alzheimer's disease. His oldest daughter has custody, refuses to communicate with me. I only have her last known address and a non-responsive cell phone number. What forms can be filed immediately at the clerk of courts office to get back child support?

• Category: Divorce
• Subcategory: Legal Separation
• Date: 04/07/2025
• State: Florida

Answer:

When a separation agreement has not been incorporated into a divorce decree, the method of enforcing it is through a lawsuit for breach of contract. Retroactive child support may also be awarded as part of a divorce or support lawsuit according to state child support guidelines. If you wish to use the legal system to resolve your dispute, you may want to review the following general information regarding contract law and breach of contract actions:

Contracts are agreements that are legally enforceable. A contract is an agreement between two parties that creates an obligation to do or refrain from doing a particular thing. The purpose of a contract is to establish the terms of the agreement by which the parties have fixed their rights and duties. An oral contract is an agreement made with spoken words and either no writing or only partially written. An oral contract may generally be enforced the same as a written agreement. However, it is much more difficult with an oral contract to prove its existence or the terms. Oral contracts also usually have a shorter time period within which a person seeking to enforce their contract right must sue. A written contract generally provides a longer time to sue than for breach of an oral contract. Contracts are mainly governed by state statutory and common (judge-made) law and private law. Private law generally refers to the terms of the agreement between the parties, as parties have freedom to override many state law requirements regarding formalities of contracts. Each state has developed its own common law of contracts, which consists of a body of jurisprudence developed over time by trial and appellate courts on a case-by-case basis.

An unjustifiable failure to perform all or some part of a contractual duty is a breach of contract. A legal action for breach of contract arises when at least one party's performance does not live up to the terms of the contract and causes the other party to suffer economic damage or other types of measurable injury. A lawsuit for breach of contract is a civil action and the remedies awarded are designed to place the injured party in the position they would be in if not for the breach. Remedies for contractual breaches are not designed to punish the breaching party. The five basic remedies for breach of contract include the following: money damages, restitution, rescission, reformation, and specific performance. A money damage award includes a sum of money that is given as compensation for financial losses caused by a breach of contract. Parties injured by a breach are entitled to the benefit of the bargain they entered, or the net gain that would have accrued but for the breach. The type of breach governs the extent of damages that may be recovered.

Restitution is a remedy designed to restore the injured party to the position occupied prior to the formation of the contract. Parties seeking restitution may not request to be compensated for lost profits or other earnings caused by a breach. Instead, restitution aims at returning to the plaintiff any money or property given to the defendant under the contract. Plaintiffs typically seek restitution when contracts they have entered are voided by courts due to a defendant's incompetence or incapacity.

Rescission is the name for the remedy that terminates the contractual duties of both parties, while reformation is the name for the remedy that allows courts to change the substance of a contract to correct inequities that were suffered. In order to have a rescission, both parties to the contract must be placed in the position they occupied before the contract was made. Courts have held that a party may rescind a contract for fraud, incapacity, duress, undue influence, material breach in performance of a promise, or mistake, among other grounds.

Specific performance is an equitable remedy that compels one party to perform, as nearly as practicable, his or her duties specified by the contract. Specific performance is available only when money damages are inadequate to compensate the plaintiff for the breach.

Promissory estoppel is a term used in contract law that applies where, although there may not otherwise be an enforceable contract, because one party has relied on the promise of the other, it would be unfair not to enforce the agreement. Promissory estoppel arises from a promise which the promisor should reasonably expect to induce action or forebearance of a definite and substantial character on the part of the promisee and which does induce such action or forebearance in binding if injustice can be avoided only by enforcement of the promise. Detrimental reliance is a term commonly used to force another to perform their obligations under a contract, using the theory of promissory estoppel. Promissory estoppel may apply when a promise was made; reliance on the promise was reasonable or foreseeable; there was actual and reasonable reliance on the promise; the reliance was detrimental; and injustice can only be prevented by enforcing the promise. Detrimental reliance must be shown to involve reliance that is reasonable, which is a determination made on an individual case-by-case basis, taking all factors into consideration. Detrimental means that some type of harm is suffered.

Reasonable reliance is usually referred to as a theory of recovery in contract law. It was what a prudent person might believe and act upon based on something told by another. Sometimes a person acts in reliance on the promise of a profit or other benefit, only to learn that the statements or promises were either incorrect or were exaggerated. The one who acted to their detriment in reasonable reliance may recover damages for the costs of his/her actions or demand performance. Reasonable reliance connotes the use of the standard of an ordinary and average person.

We can assist you with searching to locate forms or we can draft and add forms you may need to our database. However, we cannot advise you to use one particular form over another. We can show you what is available. Please see the forms at the links below to see if they meet your needs or let us know if you would like us to draft a form to meet your needs. You may order forms online or by phone by calling Toll Free: 1-(877) 389-0141 - 8:30-5:00 Central Time Zone Monday – Friday.

The following is a portion of a Florida statute:

In an initial determination of child support, whether in a paternity
action, dissolution of marriage action, or petition for support during the
marriage, the court has discretion to award child support retroactive to
the date when the parents did not reside together in the same household
with the child, not to exceed a period of 24 months preceding the filing of
the petition, regardless of whether that date precedes the filing of the
petition. In determining the retroactive award in such cases, the court
shall consider the following:

(a) The court shall apply the guidelines schedule in effect at the time
of the hearing subject to the obligor's demonstration of his or her actual
income, as defined by subsection (2), during the retroactive period.
Failure of the obligor to so demonstrate shall result in the court using
the obligor's income at the time of the hearing in computing child support
for the retroactive period.

(b) All actual payments made by a parent to the other parent or the child
or third parties for the benefit of the child throughout the proposed
retroactive period.

(c) The court should consider an installment payment plan for the payment
of retroactive child support.

Please see these FL statutes also:

61.09 Alimony and child support unconnected with dissolution. —

If a person having the ability to contribute to the maintenance of his or
her spouse and support of his or her minor child fails to do so, the spouse
who is not receiving support may apply to the court for alimony and for
support for the child without seeking dissolution of marriage, and the
court shall enter an order as it deems just and proper.

61.10 Adjudication of obligation to support spouse or minor child
unconnected with dissolution; parenting plan. —

Except when relief is afforded by some other pending civil action or
proceeding, a spouse residing in this state apart from his or her spouse
and minor child, whether or not such separation is through his or her
fault, may obtain an adjudication of obligation to maintain the spouse and
minor child, if any. The court shall adjudicate his or her financial
obligations to the spouse and child and shall establish the parenting plan
for the parties. Such an action does not preclude either party from
maintaining any other proceeding under this chapter for other or additional
relief at any time.