Posted by Nydia Streets of Streets Law in Divorce
When a Florida divorce settlement agreement states that one spouse will receive exclusive use, ownership and possession of the marital residence and the parties continue to reside in the home together after the entry of the agreement, can the other spouse request that the court award rental payments to the owning spouse? This was one question presented to the appellate court in the case Hudson v. Hudson, 209 So.3d 656 (Fla. 1st DCA 2017).
Even though the parties entered a partial mediated settlement agreement that granted the former wife exclusive use, ownership and possession of the marital residence, the parties continued to reside together for four years, all the way up until the time of trial in their divorce case. The wife claimed the husband was residing there over her objection and that she had even involved law enforcement in trying to remove him to no avail.
Six days before the trial, the wife amended her financial affidavit to include rent owed by the husband as a contingent asset. She argued on appeal that this was notice to the husband that she intended to seek the rent at trial. The appellate court disagreed, holding there are only two ways an issue is properly before the court for consideration: (1) when it is raised in the pleadings of the parties or (2) when it is considered by the court without objection. The court found that neither condition was met in this case because the wife's amended financial affidavit did not count as a pleading and the husband did not consent to this issue being considered at trial.
Further, the appellate court found that even if the pleadings had been amended or the issue was tried by consent, the rent should not have been awarded. In reviewing the terms of the parties' settlement agreement, it did not obligate the husband to pay rent for the time he was there. While there may have been arguments supporting damages under a trespass theory, the wife did not raise these arguments. Therefore, the appellate court reversed an award of $23,500.00 in back rent ordered against the husband.
By appealing this order, the husband saved over $23,000.00 he would have otherwise been obligated to pay. This case shows the importance of having a knowledgeable Miami divorce lawyer on your side. An attorney-client relationship usually starts with a consultation.