Posted by Nydia Streets of Streets Law in Florida Family Law Procedure

Under Florida Family Law Rule of Procedure 12.540, a party can move to vacate an order under certain circumstances. Depending on the circumstance, there are different deadlines for moving to vacate the order under that rule. This was an issue in the case Tucker v. Tucker, 5D2024-2111 (Fla. 5th DCA April 11, 2025).

As part of the parties’ final judgment of divorce, a qualified domestic relations order (QDRO) was entered which distributed the former husband’s retirement funds in accordance with the terms of the final judgment. Not included in the final judgment was any reference to deferred retirement option program (DROP) funds. Approximately three years after entry of the final judgment, the former wife moved to modify the QDRO to add that she was entitled to a portion of the former husband’s DROP funds. She claimed the omission of this language was a clerical error, which under Fla. Fam. L. R. P. 12.540 was able to be corrected at any time. The trial court entered the amended QDRO per the former wife’s request, and the former husband appealed.

The appellate court reversed, noting“Although the MSA and final judgment were clear that Former Wife was entitled to half of the marital portion of Former Husband’s FRS pension, neither the MSA nor the final judgment mentioned DROP. Former Husband’s attorney testified that he prepared the subject QDRO to exclude Former Wife’s right to receive any of the DROP money because the MSA was silent as to DROP. Former Wife testified that she never intended to waive her right to receive her share of Former Husband’s DROP money, while Former Husband testified that it was his specific intent to exclude her from participating in his DROP benefits.”

The appellate court concluded “The Corrective Order amounts to a 180-degree change from the 2021 QDRO, which denied Former Wife any of Former Husband’s DROP money, to now granting Former Wife her one-half share of the marital portion of his DROP money. A corrective order which changes the parties’ relative shares in an asset is a substantive change, not the ‘correction of a clerical mistake.’” The court noted that the relief sought by former wife for a substantive change would have had to have been brought within 1 year of the judgment, so her claim was untimely.

Schedule your meeting with a Miami family law attorney to determine the best way to proceed in your case.