Posted by Nydia Streets of Streets Law in Florida Divorce

What if there is a mistake in your Florida marital settlement agreement? How can it be fixed? Whether or not it can be fixed depends on how long ago the agreement was entered, and the nature of the mistake. In the case Asad v. Sheikh, 5D21-316 (Fla. 5th DCA July 9, 2021), the court considered an appeal concerning a retirement account in the parties’ marital settlement agreement.

About six months after a petition for divorce was filed, the parties entered a marital settlement agreement. Less than one week later, the former wife filed a motion to correct a mutual mistake, alleging a marital retirement account which was only in the former husband’s name was inadvertently left out of the agreement. The trial court entered a final judgment but reserved ruling on the former wife’s motion. Later, the court decided that before an evidentiary hearing would be held on the former wife’s motion, it needed to be determined whether or not the former wife was even entitled to a hearing. The trial court ultimately decided an evidentiary hearing was not warranted. The former wife appealed.

The appellate court reversed, holding “‘A court of equity has the power to reform a written instrument where, due to a mutual mistake, the instrument as drawn does not accurately express the true intention or agreement of the parties to the instrument.’ Providence Square Ass’n v. Biancardi, 507 So. 2d 1366, 1369 (Fla. 1987). ‘A mistake is mutual when the parties agree to one thing and then, due to either a scrivener’s error or inadvertence, express something different in the written instrument.’ Circle Mortg. Corp. v. Kline, 645 So. 2d 75, 78 (Fla. 4th DCA 1994). Thus, the reformation of a written instrument does not alter the agreement of the parties. Rather, the reformation corrects a defective written instrument so that it accurately reflects the parties’ agreement. [. . .] Where, as in the instant case, a motion to reform a mediated settlement agreement adequately alleges a claim for relief based on mutual mistake, the issue must be resolved by evidentiary hearing.”

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