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Divorce Order Fails Due to Use of ‘Verbatim’ Proposed Order, Complete with Awards Not Requested in Petition

law-clip-art.gifParties in divorce cases will, in many instances, submit proposed final orders to the trial judge. A recent 5th District Court of Appeal ruling serves as a reminder that, although these submissions are permissible and often helpful to trial judges, courts should be hesitant to adopt them in their entirety when the opposing side has no opportunity to comment or object. Additionally, parties are not entitled to forms of relief they didn’t ask for in their petitions, even if they raised the issues in their pre-trial documents.

The recent case involved CC’s filing for divorce from her husband, DC. The wife’s petition asked the court to dissolve the marriage, create a time sharing schedule for the couple’s child, award child support, and distribute the couple’s assets and liabilities.

The court scheduled a hearing on the case, set to begin at 9 AM. The husband received a notice at his residence informing him about the hearing, but he did not show. The hearing began on time, and the court heard testimony from the wife’s side. At 9:15, with the husband still not in attendance, the court granted the wife’s petition and dissolved the marriage. The court also gave her sole custody of the child, subject to visitation with the father at her discretion and his sobriety.

At this point, the case appeared fairly routine. Complications entered the picture when the wife’s lawyers submitted to the judge a proposed final order in the case that included items not mentioned in her divorce petition, like alimony and wife’s attorney fees. Nevertheless, the trial judge signed the proposed order.

The husband appealed and won on the alimony and attorney fees issues. The trial judge’s decision simply to sign the wife’s proposed order was problematic because the law requires trial court orders to reflect “a thoughtful and independent analysis of the facts, issues, and law by the trial judge.” By just signing the proposed order created by the wife’s attorneys, the trial judge in this case created “an appearance that the trial judge did not exercise his or her independent judgment in the case.”

The appeals court rejected the wife’s argument that, since she had listed attorney fees and alimony in her pre-trial compliance documents, the husband was aware that these forms of relief were potentially in play. Including items like alimony and attorney fees in pre-trial compliance paperwork is not the same as including them in the actual divorce filing, or amending the petition to add them.

The wife had properly included a request for dissolution, a time sharing schedule, and entitlement to child support in her petition, so those rulings stood. However, since she did not include alimony and attorney fees, the court struck down those awards.

This case highlights something of a “better late than never” lesson for those going through divorce. The husband likely would have benefited from retaining counsel who would have attended the trial court hearing and advocated for his rights at that point. However, even after receiving an extremely unfavorable decision in the trial court, the husband then made the wise decision not to give up but to seek out attorneys to pursue his case in the appeals court and roll back those aspects of the decision outside the bounds of what the law allows. If you are going through a divorce or other family court matter, consult the South Florida family law attorneys of Sandy T. Fox, P.A.. Our skilled, experienced attorneys are here to assist you and ensure that the hearing you get in court is a fair one.

Contact us online or by calling (800) 596-0579 to schedule your confidential consultation.

More Blog Posts:

Mother and Child Reunion Put on Hold After Court Decides to Hear More Evidence Regarding Best Interest of Child, Fort Lauderdale Divorce Lawyer Blog, Sept. 24, 2014
Alimony That Requires Wife to Dip into Assets to Pay Monthly Expenses is Too Low, Appeals Court Says, Fort Lauderdale Divorce Lawyer Blog, Sept. 20, 2014