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COURT VACATES ALIMONY AWARD WHERE WIFE DID NOT SEEK ALIMONY IN PLEADINGS, AND FAILED TO OBTAIN ORDER ON HER MOTION TO AMEND PLEADINGS

Recently the 3rd DCA in the case of McClain v. McClain, vacated an award of permanent alimony to the Wife where the trial court made the award even through the Wife never plead for alimony. The Wife, who was represented by counsel, filed an answer to the Husband’s Petition which did not seek alimony or spousal support. At one point in the proceedings, the Wife moved to amend her answer to include counterclaims for alimony. But the Wife never obtained an order on that motion. Although the Wife never plead for alimony, the trial Court still awarded her alimony over the Husband’s objection.  The Husband appealed.

The 3rd DCA vacated the alimony award finding that 1) A Court is not at liberty to award alimony where the benefitting spouse has failed to seek such relief in the pleadings; and 2) Unless and until it is granted, the mere filing of a motion to amend the pleadings does not constitute an actual amendment to the pleadings.

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Weiner & Weiss, LLC
Weiner & Weiss, LLC
1900 Glades Road Suite 351 Boca Raton, FL 33431
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