Posted by Nydia Streets of Streets Law in Florida Divorce

The petition and the answer in a Florida family law case are some of the most important documents filed. Why? Because they frame the issues in the case and put everyone on notice about what is at stake. Florida law generally requires that both parties put all relief they are seeking in their petition or answer. Failure to do so may result in the court not being able to consider matters not raised in the pleadings. This was an issue in the case Sieberg-Shabbick v. Shabbick, 3D22-1694 (Fla. 3d DCA April 24, 2024).

The former husband sought a set-off for the rental value of the marital property. The first time he raised this issue was in his pretrial catalogue. At trial, the former wife objected because the former husband did not raise this issue in his pleadings. The final judgment of divorce granted the former husband’s request for the set-off and the former wife appealed.

The appellate court reversed, noting “‘It is well-established that ‘[i]n the answer a party must state affirmatively any matter constituting an avoidance or affirmative defense or any other affirmative defense as allowed by law.’ Fla. Fam. L. R. P. 12.110(d). ‘A party waives all responses and objections that the party does not present either by motion . . . or, if the party has made no motion, in a responsive pleading.’ Fla. Fam. L. R. P. 12.140(h)(1). ‘When a defense is not raised by a motion or pleading, the trial court is without jurisdiction to consider and decide the issue.’ Udell v. Udell, 950 So. 2d 528, 529 (Fla. 4th DCA 2007).”

The court concluded “Here, rather than pleading set-off in a motion or pleading, the Former Husband raised the issue for the first time in his pre-trial catalogue. Because the Former Husband failed to raise the matter as an affirmative defense or file a motion for such relief, we find the trial court erred by awarding him the set-off. [. . .] Further, we find the set-off issue was not tried by consent or waiver as the record reflects the Former Wife promptly objected to the Former Husband’s argument.”

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