Going through a divorce is hard enough. Add children, relocation plans, and competing legal filings to the mix, and it can feel completely overwhelming. If you are navigating a divorce in the Tampa Bay area and wondering whether you have the right to move — or the right to fight back if your spouse wants to move — a landmark 2023 Florida appeals court decision has important lessons for you. Understanding this ruling, and knowing how to apply it to your situation, is exactly why working with a skilled Tampa divorce lawyer can make all the difference in your case.
The Case at a Glance: Gerber v. Dubrowski (2023)
In December 2023, Florida’s Second District Court of Appeal decided Gerber v. Dubrowski — a Tampa-area divorce case that shines a spotlight on one of the most emotionally charged issues in family law: a parent’s right to relocate with their children after a marriage ends.
Here is what happened, in plain English.
A husband and wife had been married for nearly ten years and had three children together. In March 2021, the husband filed for divorce. The wife responded with her own counter-petition and, importantly, asked the court for permission to relocate with the children to Parkland, Florida — a city several hours away from Tampa.
The trial court held a hearing on her relocation request in August 2021 and said no. At that point, the court found that moving to Parkland was not in the best interests of the children and that the relocation would probably not be approved at the final hearing either. After that setback, the wife dropped her Parkland request from her legal filings.
Fast forward to the summer of 2022. A trial date was set for October 27 and 28. Then, on September 8 — about seven weeks before trial — the wife filed a new motion asking to amend her legal filings to add a relocation request again, this time seeking to move to either Orlando or Parkland. She also asked for more time to prepare for trial.
The trial court held a hearing on these requests on September 22, with trial still more than a month away. The judge denied her request, calling it “too late” — and that was the only real reason given. The case went to trial without the relocation issue ever being decided on its merits. The wife appealed, and the appellate court sided with her.
What the Appeals Court Decided — and Why It Matters
The Florida Second District Court of Appeal reversed the trial court’s decision to deny the wife’s motion to amend. In other words, the appeals court said the lower court got it wrong. Let’s break down the key legal principles the court applied, and why they matter to anyone going through a divorce in Florida.
Florida strongly favors letting people update their legal filings
Under Florida family law rules, courts are supposed to “freely” give a party permission to amend their pleadings — the formal documents that set out what each side is asking for — when fairness requires it. The underlying idea is that cases should be decided on their actual merits, not on technical filing errors or timing issues. The appeals court emphasized that all doubts should be resolved in favor of allowing an amendment.
A court can only refuse to let someone amend their filings in three specific situations: (1) the party has abused the right to amend by repeatedly filing without good cause; (2) the proposed amendment would be futile — meaning it can never succeed; or (3) granting the amendment would genuinely prejudice the other party.
None of those three factors applied here, the appeals court found.
“Too late” is not a legal standard
The trial court’s only stated reasons for denying the amendment were that (1) the trial order had been issued more than a month before the wife’s motion, and (2) the closer a case gets to trial, the less generous courts should be about amendments. The appeals court wasn’t buying it.
The court noted that there is no bright-line rule about when a motion to amend becomes “too late.” More importantly, the court said that the bare timing of a motion is, at most, a secondary factor — the primary considerations are prejudice to the other side, abuse of the amendment privilege, and whether the amendment would even be worthwhile. Timing alone cannot justify denial.
In fact, Florida courts have reversed denials of amendment motions filed the day before trial. Here, the trial was still 34 days away when the court ruled on the motion. Thirty-four days is not “the eve of trial.”
The husband was not genuinely prejudiced
The husband argued that allowing the amendment would hurt him because he would have to spend time and money on additional preparation and discovery. The appeals court disagreed.
Under Florida law, prejudice in this context means the other party’s ability to prepare for the new claims before trial is seriously compromised. That was not the case here. The husband already knew about the wife’s desire to relocate — the parties had already litigated a temporary relocation request to Parkland. The new amendment was not asking for something entirely out of left field. And the wife had already been deposed the week before trial as scheduled.
Even if there had been some prejudice, the court noted, the proper remedy is usually a continuance — a delay of the trial — rather than a flat-out denial of the amendment.
A denied temporary relocation does not foreclose a permanent one
The husband also argued that the proposed amendment was futile, pointing to the fact that the court had already denied a temporary relocation to Parkland. The appeals court rejected this argument too.
Under Florida law, a relocation request at the final hearing is evaluated based on the circumstances at the time of that hearing — not based on what was decided months earlier in a temporary order. Circumstances change. The wife was now asking to relocate to Orlando as a primary option, which had never been addressed. The appeals court said it would be improper to block her from even making the argument.
Why This Case Matters If You Are Going Through a Divorce in Tampa
You might be thinking: this is interesting, but what does a court decision about legal procedure have to do with my divorce? Quite a bit, actually. Here are the core takeaways for anyone navigating Tampa family law proceedings.
Your plans can change — and the law accommodates that
Divorce cases take time. A case filed in 2021 might not go to trial until 2022 or later. In that time, your life changes. Maybe you got a job offer in another city. Maybe family circumstances shifted. Maybe what seemed like the right plan a year ago no longer makes sense. Florida family law recognizes that rigid procedural rules should not trap you in decisions that no longer reflect your reality, and courts are supposed to lean toward letting you update your legal filings when circumstances change.
Relocation disputes are among the most complex in family law
If you want to move more than 50 miles away from your current address with your children, Florida law requires you to follow a formal process. You must either get your co-parent’s written agreement or obtain court approval. Courts evaluate relocation requests based on a long list of statutory factors, including the reason for the move, how it will affect the children’s relationship with the other parent, the children’s ages and needs, and much more.
This is not a process you want to navigate without experienced legal guidance. A Florida divorce attorney who understands how these cases unfold — including what arguments to make, when to make them, and how to properly preserve your rights for appeal — can make an enormous difference in the outcome.
Procedural missteps can cost you — but appellate courts can correct them
Gerber v. Dubrowski is a reminder that trial courts sometimes get it wrong. The trial judge denied a motion based on timing alone, without making any findings about actual prejudice, futility, or abuse of the amendment privilege. That is a legal error — and Florida’s appellate courts exist precisely to catch and correct those kinds of errors.
The lesson here is not that you should plan to appeal your case. Appeals are expensive, time-consuming, and uncertain. The lesson is that having a knowledgeable attorney from day one — someone who knows the rules, files motions correctly and on time, and makes the right arguments before the trial court — gives you the best chance of not needing an appeal in the first place.
Timing matters, but it is not everything
One of the most important principles from this case is that no single factor — not even timing — automatically kills your legal options. Courts are supposed to weigh all relevant considerations. If you feel like a door has been closed in your divorce case, whether it’s a relocation request, an alimony claim, or something else, it is worth talking to a legal professional before assuming you are out of options.
Temporary orders and permanent orders are not the same
This case also reinforces an important concept in Florida family law: a temporary ruling is not the final word. Early in your case, courts make temporary decisions about things like where the children will live, whether one spouse will receive temporary support, and whether a parent can relocate during the pendency of the divorce. These decisions are made quickly, often without full information, and they are subject to revision.
The final hearing is where the full picture is presented and permanent decisions are made. Do not give up on a position just because a temporary motion did not go your way. Work with your attorney to build the strongest possible case for the final hearing.
Frequently Asked Questions About Relocation and Divorce in Florida
Can I move out of Tampa with my children before my divorce is final?
Generally, no — not without the other parent’s written consent or a court order allowing it. Florida’s relocation statute applies during divorce proceedings, not just after a final judgment. If you want to move more than 50 miles away, you need to follow the proper legal process. Moving without permission can have serious consequences, including being ordered to return and losing credibility with the court.
What factors does a Florida court look at when deciding relocation?
Florida courts consider a broad set of factors, including the nature and strength of the child’s relationship with each parent, the reason for the proposed relocation, how the move would affect the child’s relationship with the non-relocating parent, the child’s age and development, and the economic circumstances of both parents. There is no single factor that automatically controls the outcome — courts look at the whole picture.
What if I already have a final divorce judgment — can I still relocate?
Yes, but you still need to follow the proper process. If you have a final order that addresses time-sharing, you must either get the other parent’s written agreement to relocate or file a petition with the court. Relocation after a final judgment often requires showing a substantial change in circumstances as well.
What if my spouse wants to move away with our children and I don’t agree?
You have the right to object. If your spouse files a petition to relocate and you disagree, you can file a formal objection. The court will then hold a hearing where both sides can present evidence. Your attorney can help you gather the evidence you need to make the strongest possible argument against relocation, including testimony about your relationship with your children and the potential impact of the move.
Key Takeaways: What Every Tampa Divorce Client Should Know
- Florida law strongly favors letting parties update their legal filings — courts are supposed to lean toward amendment, not against it.
- Timing alone is not sufficient to deny a motion to amend. Courts must also consider prejudice to the other party, abuse of the amendment privilege, and whether the proposed change would be futile.
- A denied temporary relocation request does not automatically bar you from seeking permanent relocation. Final hearing decisions are evaluated based on current circumstances.
- If granting an amendment would cause some prejudice to the other side, the right remedy is usually a continuance — not a denial.
- Relocation cases are fact-intensive and heavily scrutinized. Having a skilled Florida divorce attorney in your corner from the start is critical.
- Appellate courts can correct errors made by trial courts — but the best outcome is getting it right the first time.
Talk to a Tampa Divorce Lawyer Who Knows Florida Family Law Inside and Out
The Gerber v. Dubrowski case is a powerful reminder that the outcome of your divorce often hinges on procedural decisions that happen long before you ever walk into a courtroom — decisions about what to file, when to file it, and how to respond when the other side pushes back. Every motion matters. Every deadline matters. Every argument matters.
At The McKinney Law Group, our experienced Tampa divorce lawyers understand how high the stakes are when children are involved. Whether you are facing a relocation dispute, working through a complex parenting plan, dealing with contested asset division, or simply trying to understand your rights, we are here to provide clear guidance and steadfast advocacy throughout the process.
We know that divorce is one of the most difficult experiences a person can go through. Our goal is to make sure you have the knowledge, the strategy, and the support you need to move forward with confidence — not just today, but for the years ahead.
If you have questions about your divorce, a potential relocation, or any other aspect of Tampa family law, we encourage you to reach out. The sooner you get informed legal guidance, the better positioned you will be to protect your rights and the well-being of your children.
Contact The McKinney Law Group today to schedule a confidential consultation with a Tampa divorce lawyer.
Your family’s future deserves experienced, compassionate representation. We are ready to help.
Written by Damien McKinney, Founding Partner
Damien McKinney is the Founding Partner of The McKinney Law Group, bringing nearly two decades of experience to complex marital and family law matters. He is licensed in both Florida and North Carolina and has been repeatedly recognized as a Rising Star by Super Lawyers.