Fort Lauderdale Divorce Lawyer Blog
In many divorce actions, the most contentious issue is how property and assets should be divided. Pursuant to Florida law, the courts generally aim to divide marital property in a fair manner, which in some instances means that they may deem it appropriate to award one party a set-off for an asset or source of income. The courts can only do so if the party awarded the set-off requests it in a pleading, however, as it is considered an affirmative defense. If the courts grant a set-off absent the assertion of it in a pleading, it likely constitutes grounds for appealing the final judgment of divorce. This was demonstrated in a recent Florida divorce action in which the attorneys of the Law Offices of Sandy T. Fox, P.A. represented the wife and successfully argued that the court improperly granted the husband a set-off. If you need assistance with a divorce issue, it is smart to meet with an assertive Miami divorce attorney as soon as possible.
Case Setting
It is reported that the husband and wife divorced. The wife, who was represented by Law Offices of Sandy T. Fox, P.A., subsequently appealed the final judgment of dissolution of marriage. The crux of the appeal was the trial court’s decision to award the husband a set-off for the rental value of the marital home. The wife contended that this set-off was improper because the husband had not raised the issue in any prior pleading or motion.
Grounds for Reversing a Final Judgment of Dissolution
On appeal, the court examined the procedural history and relevant legal principles. It pointed out that under Florida Family Law Rules, parties are required to affirmatively state any matter constituting an avoidance or affirmative defense in their pleadings or motions. Failure to do so results in the waiver of those defenses.
In this case, the husband had not raised the issue of the set-off in any pleading or motion but rather brought it up for the first time during pre-trial proceedings. The court cited precedent emphasizing that affirmative defenses like set-offs must be properly raised to be considered by the trial court, and failure to do so deprives the court of jurisdiction over the matter.
Furthermore, the court rejected the husband’s argument that the wife’s consent was implied or that she waived the right to object, noting that the wife promptly objected to the husband’s argument during the trial. Implied consent, according to Florida law, does not exist when there is an objection to the introduction of evidence or argument. Therefore, the trial court’s decision to grant the set-off was deemed erroneous and reversed.
Meet with a Trusted Miami Attorney
People expect that the courts will make reasoned decisions in divorce actions in compliance with the law. Unfortunately, the Florida courts are not immune to error, which is why it is essential to hire an attorney who will fight to help you seek a just outcome, whether it is at the trial or appellate level. The trusted Miami divorce lawyers of the Law Offices of Sandy T. Fox, P.A. can assess your case and inform you of your options for seeking the results you deserve. You can reach us at 800-596-0579 or use the form online to arrange a meeting.