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How Procedural Pitfalls Can Ensnare Your South Florida Family Law Case

Legal News GavelIn an episode of a popular TV courtroom drama, a judge once declared that “it’s not about being right… it’s about doing right.” While that case and that judge were fictional, that statement acknowledged an important aspect of the law: having a successful case is about more than facts. It requires understanding the procedural requirements of the law and following them properly. For one Miami-Dade County wife, procedural shortcomings were what derailed her recent case. To make sure you avoid getting trapped in a procedural pitfall, be sure you have skilled Florida family law counsel working for you.

The wife and her husband reached an oral agreement to resolve the matters involved in their divorce. The agreement said that each spouse was entitled to keep his/her own separate property assets. One item that was covered by this settlement, and by that non-marital-asset provision, was the marital home, which the husband had bought and which he 100% owned. The trial court finalized the divorce, including the settlement agreement, on April 5, 2016. The wife did not contest that order.

The problem was that the wife and the couple’s two minor children lived in the home. The husband, after getting the divorce order, went back to court and filed an “unlawful detainer” action. That is a legal action you can file and pursue in order to evict someone from a property.

The wife fought back by filing an action asking the judge to throw out the final divorce judgment. The wife argued that if the divorce settlement involved throwing her and the children out of the marital home then the order was not “equitable.” (Florida law requires that divorces distribute property in an equitable, or fair, manner.) The specific basis of the wife’s argument that the trial judge made a mistake by not considering where the couple’s children would live after the divorce became final, in violation of established Florida court precedent, as declared in a 2005 ruling named Dorsett v. Dorsett.

The appeals court concluded that the wife was not entitled under Florida law to proceed in this manner. The wife’s argument was, in essence, an assertion that the trial judge made a legal error in failing to comply with the Dorsett ruling. When a trial judge makes an “error of law,” the Florida rules say that the party seeking to reverse that must do so, in a timely manner, under the requirements of Rule 1.530. This wife’s action tried to undo this divorce order under Rule 1.540. The appeals court declared specifically that Rule 1.540 was not “an appropriate vehicle to challenge a judgment based upon alleged legal error.”

In a footnote, the appeals court stated that it was announcing “no opinion as to whether [the wife] may have other avenues of relief.” In other words, this ruling did not declare that the wife had no case; it simply declared that the tool she used to pursue her action was the wrong one. Of course, that means that the wife’s previous efforts had been for naught and that, to continue her efforts, she’d have to start over from the beginning.

Whether you are contesting an issue of alimony, equitable division of property or some other divorce issue, skilled Miami family law attorney Sara Saba is here to help. Attorney Saba has been providing useful advice and effective advocacy for her clients for more than 13 years. Our team is dedicated solely to meeting your family law needs. Contact us online or by calling (305) 450-8009 to schedule your consultation. Hablamos Español.

More blog posts:

Calculating the Marital Portion of Passive Appreciation of Non-Marital Property in a Florida Divorce, Miami Divorce Lawyer Blog, April 16, 2018

New Law Gives Divorcing Spouses More Options in Florida, Miami Divorce Lawyer Blog, March 29, 2018