Posted by Nydia Streets of Streets Law in Florida Divorce

If one spouse pays the mortgage while a divorce is pending, is that spouse owed a credit in equitable distribution for one-half of the mortgage payments made? This was a question answered in the recent appellate case Matthews v. Matthews, 2D17-2834 (Fla. 2d DCA 2019 February 8, 2019).

In this case, the former husband and former wife lived together in the marital home while the divorce was pending. During that time, the former husband made all of the mortgage payments. Neither party requested alimony or retroactive support in their pleadings. Nonetheless, the trial court denied the former husband’s request for reimbursement from the former wife for one-half of the mortgage payments made, reasoning the former husband had not paid child support while the case was pending, he earned a higher income than the former wife and he was living in the home with the former wife while the case was pending.

The former husband appealed and won. The appellate court reasoned, “In addressing the first two justifications, the Former Wife appropriately concedes that it was error for the trial court to rely on the lack of retroactive child support and the difference between the parties' income because neither party had requested retroactive child support or alimony. [. . .] "The courts of this state have consistently held that a trial court does not have the authority to decree relief that has neither been requested by way of pleading nor tried by consent." Koehler v. Roberts, 661 So. 2d 374, 374 (Fla. 2d DCA 1995). As the parties did not request such relief, it was improper for the court to consider factors only relevant to retroactive child support and alimony, and these factors cannot support the unequal award of mortgage and HELOC payments. Similarly, the trial court's third justification is inadequate. The mere fact that the parties were living together in the marital home during the pendency of the proceedings is not an exceptional circumstance that would justify an unequal award. See § 61.075(1) (listing factors that would justify a departure from equal distribution).”

If you want credit for mortgage payments made while a case is pending it is important to ask for it in your pleadings. A Miami divorce lawyer can help you do this properly. Schedule a consultation to understand your rights and remedies.