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remains viable and enforceable notwithstanding the death of one
spouse before entry of a final divorce decree. Berry v.
Commissioner, T.C. Memo. 2000-373 (citing Hirsch v. Hirsch, 519
So. 2d 1056 (Fla. Dist. Ct. App. 1988)), affd. 36 Fed. Appx. 400
(10th Cir. 2002). Pursuant to Florida domestic relations law, a
trial court in Florida can retain jurisdiction to dispose of a
claim for attorney's fees. Fla. Stat. Ann. sec. 61.16 (West
1997). Florida courts have affirmed the policy that obligations
to pay attorney's fees of a former spouse stemming from the
divorce should survive the death of the payee. Faust v. Faust,
553 So. 2d 1275 (Fla. Dist. Ct. App. 1989) (the purpose of Fla.
Stat. Ann. sec. 61.16 is to ensure that both parties to the
dissolution action had similar ability to secure competent legal
counsel); Steinberg, Wohl & Merlin, P.A. v. Leyman, 524 So. 2d
503, 505 (Fla. Ct. App. 1988) ("in the case of attorney's fees
the need therefor is not extinguished by a spouse's death;
whereas in the case of alimony for the decedent or other such
claim, death obviates the necessity therefor"); Hirsch v. Hirsch,
supra at 1057 ("There is no logical reason why the wife's
untimely demise should relieve the husband of an obligation which
as a matter of policy and justice he ought to bear.").
On the basis of Florida law, as well as the policy
underlying awards of attorney's fees in divorce actions, the
Court concludes that the Supreme Court of Florida would hold that
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Last modified: May 25, 2011