Posted by Nydia Streets of Streets Law in Florida Family Law Procedure
Can you amend your Florida family law petition? Sometimes parties forget to ask for certain relief in their pleadings such as alimony. If relief is not requested in a petition, it usually cannot be granted by the court. This is why permission to amend pleadings are liberally granted. But there are limits. This was an issue in the case DiGiacomo v. Mosquera, . 3D20-463 (Fla. 3d DCA June 16, 2021).
In the parties’ divorce case, the former wife filed a motion for temporary alimony, however, her pleadings did not include a request for alimony. Shortly before trial, the former wife included in her pre-trial catalogue a request for alimony to be awarded in the final judgment of dissolution. One business day before trial, she filed a motion to amend her pleadings to include a claim for alimony. On the day of trial, the court denied the former wife’s request to amend, citing prejudice to the former husband and the former wife’s significant delay in requesting alimony despite being represented by counsel throughout the case. The former wife appealed.
The appellate court found no error and concluded “In the instant case, the trial court properly determined that granting the Wife leave to amend to file, on the day of trial, a counterpetition for alimony would cause substantial prejudice to the Husband, who had been litigating the matter with the Wife for two years, and did not anticipate and had not prepared to litigate a claim for alimony (such preparation might include: retaining a vocational expert to address imputation of income for the Wife who was unemployed; deposing the Wife and/or Wife’s expert on the issue; conducting pretrial preparation to meet and challenge an alimony claim).”
The court further held “We also find without merit the Wife’s contention that the Wife’s earlier motion for temporary alimony somehow put the Husband on notice that the Wife was seeking post-dissolution alimony. The Wife’s motion for temporary alimony specifically cited to section 61.071, Florida Statutes (2018), and expressly sought an award of temporary alimony ‘[d]uring the pendency of’ the dissolution of marriage proceeding. As the Wife’s motion correctly noted, section 61.071 ‘pertains to alimony in a dissolution proceeding and does not address a temporary award post-dissolution.’”
Making sure you are following the correct procedural steps in your Florida divorce is important to the success of your case. Schedule a consultation with a Miami family law attorney to understand how to proceed in your case.