Correcting Clerical Error vs Substantive Error
In Tucker v. Lancaster (Fla. 5th DCA 2025), the court addressed a dispute over a post-divorce retirement benefits order and clarified the difference between clerical and substantive mistakes in court judgments. The case originated from a divorce finalized in 2021, which incorporated a marital settlement agreement. According to the agreement, the former spouses were to equally divide the former husband’s Florida Retirement System (FRS) pension. As part of that process, the former husband’s attorney drafted a Qualified Domestic Relations Order (QDRO), which was reviewed and signed by both parties. The QDRO was officially entered by the court on October 11, 2021.
Unknown to the former wife at the time of signing, the QDRO included a clause stating she waived any rights to benefits the former husband would receive under the Deferred Retirement Option Program (DROP), a component of the FRS. This waiver was not part of the original marital settlement agreement, and the former wife did not become aware of it until 2024. She then filed a motion for relief from the QDRO under Florida Family Law Rule of Procedure 12.540(a), which allows for correction of clerical mistakes in judgments or orders at any time, either on the court’s own initiative or on a party’s motion.
The trial court granted her motion, finding that there was no evidence she had knowingly agreed to waive her entitlement to DROP benefits. The former husband appealed the decision, arguing that the error was not clerical but instead a substantive modification of the original order, and therefore not subject to correction under Rule 12.540(a). The Fourth District Court of Appeal (DCA) reviewed the matter and agreed with the former husband’s interpretation of the rule.
The appellate court clarified that clerical mistakes refer only to accidental slips or omissions that do not alter the substance of a court’s judgment. Substantive changes, such as those that impact the rights and obligations of the parties, must be addressed under Rule 12.540(b), which permits relief from judgments due to mistake, inadvertence, surprise, or excusable neglect, but only if filed within one year of the original judgment’s entry. Since the former wife’s motion came nearly three years after the QDRO was entered, her request was untimely under subsection (b). The appellate court held that her claim involved a substantive legal issue, not a clerical error, and therefore the trial court lacked authority to modify the QDRO under subsection (a). As a result, the Fourth DCA reversed the lower court’s decision.
This case serves as a cautionary tale for litigants and attorneys, emphasizing the necessity of thoroughly reviewing all documents submitted to the court before signing. It illustrates how overlooking seemingly small details in legal documents can have significant long-term consequences. It also reinforces the importance of understanding procedural rules governing the correction of court orders, particularly the strict time limits associated with seeking relief for substantive mistakes.
Michael DeVoe is a divorce attorney in Orlando, Florida practicing contested divorce, uncontested divorce, timesharing, visitation, custody, paternity, child support, injunctions, and other family law cases.
