Divorce Lawyer - Divorce Attorney Naples FL

The United States of America has 3007 counties which each govern and conduct family law in their own particular style. This myriad of laws and regulations mean that each local area needs local expertise to navigate a divorce, custody hearing, alimony determination or any other type of family law situation. So, how does family law operate in Naples, Florida, Collier County?

Family law in Naples, Florida is governed by a series of federal, state and local laws, rules and courts. In this article, I attempt review all of the sources of family law that affect a Naples, Florida domestic relations case. If you can read through it all, you’ll have a good “big picture view” of how family law works in Naples, Florida.

Federal Law

Federal law almost always trumps state or local laws. There are barely any federal laws that impact family law and divorce in particular but your lawyer should be familiar with the few that do such as:

• Alimony for divorces after 2019 are taxable to the payor. Alimony for divorces before 2019 are taxable to the receiver.
• Your 401k beneficiary will remain your ex-husband or wife no matter what your divorce says unless you actually change the beneficiary.

There are numerous other federal rules that trump state and local rules but they almost always involve pensions and retirement plans which are heavily federally regulated. The federal government’s more powerful impact is that the Supreme Court has declared marriage and parenting to be fundamental rights. The fundamental right of marriage that you can marry someone of a different race Loving v. Virginia, 388 U.S. 1 (1967) or the same sex, Obergefell v. Hodges 135 Supreme Ct. 2071. So, if you can get married via federal law, you can get divorced and enjoy any other rights states and localities give to married people. The fundamental right to parent your children was decided in Troxell v. Granville in the year 2000. This right prevents third parties from petitioning in courts for time with children over parents’ objections.

This means grandparents have no rights to their grandchildren because of the United States’ Supreme Court. This United States supreme court decision trumps Florida statutes that have been enacted after 2000 that allow grandparents to petition for time with their grandchildren. Naples, Florida family law must always first observe federal law and regulations before following any state law or local rule.

Florida State Statutes

The bedrock of family law in Naples, Florida are the Florida state statues which can be conveniently be found online here. There is one large title in the Florida Statutes, Title 744, that cover domestic relations. This title includes chapters for marriage, domestic violence, determination of parentage, guardianship, custody and supervised visitation. This title largely describes the “what” of family law. Specifically, Title 744 defines what exactly is a marriage, a parent, a guardian and custody in Florida. Outside of Title 744 in the Florida Statutes is Chapter 61 titled “Dissolution of Marriage; Support; Time-Sharing.”

Chapter 61 is found under Title 6: Civil Procedure. Chapter 61 describes the “how” of the law. Chapter 61 tells in detail how you get divorce, how you divide marital property, how is custody determined, etc. Almost all Florida family law issues are described in varying detail in Chapter 61.

Florida Family Law Rules Of Civil Procedure

The “how” as outlined by Chapter 61 is largely instructions for a judge on how to rule in a disputed case. There is a separate set of rules for how parents, couples and lawyers can present their cases to those judges. The set of rules governing family law court cases is called the “Florida Family Law Rules of Civil Procedure.” This document is 176 pages of how a disputed or agreed Florida family law case is supposed to proceed. While the Florida family law statutes are fairly straightforward to read, the Florida Family Law Rules of Civil Procedure are not for the layperson. The rules outline various options and motions that either party can perform to further their case or counteract the opposing side’s case. A quick perusal of the 176 pages of rules should let any person know that if they think they need to know these rules, they need an experienced Florida family law attorney to properly invoke the rules on their behalf.

Florida Evidence Code

If you’re using the Florida Family Law Rules of Civil Procedure, then you are in court because you have a dispute as to some issue in your Florida family law case. These disputes are resolved by the Florida courts in hearings and trials. A family law trial is a big organized meeting between the two sides and the judge where all of the facts are considered by the judge and the judge issues a divorce and other rulings related to the divorce.

A family law hearing is exactly the same except a divorce is not issued. A hearing resolves individual issues apart from the actual divorce. A hearing can happen before the divorce to resolve temporary issues or after the divorce to resolve issues that weren’t resolved by the final divorce documents. When a Florida family law case does not involve a marriage, such as a parentage case, everything in front of a judge is a hearing because there can be no divorce. So, in reality the terms “trial” and “hearing” are interchangeable in Florida family law. A hearing or trial has three phases.

• Opening statements. During opening statements, the parties summarize what they will be presenting to the court.
• The case in chief. The case in chief involves putting witnesses on the stand who then provide testimony and authenticate physical evidence.
• Closing Statements. Closing statements are the summation of the evidence submitted and an argument for how the judge should interpret that evidence based on the law.

Anyone who has ever asked for anything can do an opening statement or a closing statement. Asking the judge for something is the easy part. The case in chief is where the action really is. The judge has to base his decisions based on the evidence…not based on what you asked for. You cannot just give the judge a stack of papers for the judge to read. Everything has to be submitted in a special way according to the Florida Evidence Code.

The Florida Evidence Code outlines what can be admitted into evidence (what the judge can actually consider when making his or her decision) and what the judge CANNOT consider. To keep evidence out, the opposing counsel must shout “Objection!” and then state the basis of their objection based on the Florida Evidence Code. This is really complicated…and you have to do it instantaneously. I’ve been practicing Family Law for 13 years and I still go to weeklong seminars to continue to learn how to submit evidence perfectly.

Florida Case Law

The Florida statutes are written so that the common person can read them. They are extremely brief and can’t possibly accommodate every possible scenario that can arise in a Naples, Florida family law case. When the statute doesn’t tell the judge exactly what to do or the statute contradicts itself, then the courts have to figure it out. This usually happens by someone filing an appeal. An appeal is where someone says the circuit court (the family law court where a case starts) got the law wrong. The appeals court then considers the record and publishes a public decision about whether the court interpreted the law correctly or incorrectly. This is the “case law.”

Case law is where the appellate courts fill in the blanks. Case law provides an example, explains the law and provides the reasoning behind that explanation. This is actually, the entire basis of the law and order system that Great Britain and America have enjoyed. It’s called the common law system. In addition to reading the statutes, you can put your issue into Google Scholar, specify “Florida Courts” and read about similar cases to yours. An appellate decision by an appeals court is now the new law for those situations where the facts fit between the statute.

Case law is not necessarily binding depending on your case’s location. Naples, Florida family law cases are in Florida’s 2nd Appellate district. Florida’s 2nd Appellate district is from Pasco County down to Naples, Florida’s Collier County. An appellate decision by Florida’s 2nd Appellate district is “binding” on a Naples, Florida family law case. An appellate decision by any other district in Florida is just “persuasive.”

The difference between a binding and a persuasive appellate decision is that a lower court must follow a binding decision while a lower court must merely consider a persuasive decision. Florida supreme court decisions are all binding on Naples, Florida family law cases.

For federal court decisions, the Supreme Court of the United States, the United States Court of Appeals for the 11th Circuit and The Federal Middle District of Florida’s decisions are binding on Naples, Florida family law cases. All other federal court decisions are merely persuasive.

20th Judicial Circuit

Finally, the last local set of rules governing a Naples, Florida family law case are the local rules of Florida’s 20th Judicial Circuit. The 20th Judicial Circuit is the court system used by Charlotte, Collier, Hendry, Lee and Glades Counties. All of which are in Southwest Florida. The 20th Judicial Circuit has adopted certain rules as a whole for administering the court system. It’s not important that you know these 20th judicial circuit rules. You will be assigned a judge and you’ll need to know that judge’s particular rules.

Collier County Judge’s Standing Orders

As of this writing, there are two judges who handle family law in Naples, Florida. Each of these Collier County family law judges have a standing order. A standing order is a general order instructing all of the people who appear before that judge as to how they should conduct themselves above and beyond all of the sources of law we have already discussed.

Judge Scott Cupps’s standing orders can be found here.

Judge John McGowan’s standing order can be found here.

These Collier County Judge’s standing orders are largely instructions on how to communicate with the judge’s staff, schedule hearings, and submit documents. Study your judge’s standing order and refer to it frequently. A standing order is largely a guide to the etiquette of how to deal with that judge and their staff. The judge and their staff have every right to be upset if you violate THEIR order. It’s important to note that you may not ever see your particular judge in person.

Many cases can be resolved by negotiations between the parties and the mediators. What’s more, the parties to a Collier County divorce are more likely to resolve their temporary issues in front of a Magistrate.

A magistrate is not an elected judge but, rather, a lawyer who sits as a judge on behalf of that judge and makes decisions following the law. For all intents and purposes, a magistrate is a judge except you have the right to not object to the magistrate hearing your case in favor of your judge hearing your case. The only downside in doing this is that the judge is busier and will schedule your hearing at a later date.

Hornbooks, Blogs, etc.

There are many sources out there to help you better understand how the Naples, Florida family law process works. Many family law lawyers have sat down and compiled and summarized the entire body of Florida Family law in what is called a “hornbook” or “legal treatise.” These summaries are often in excess of a thousand pages. I particularly enjoy Florida Family Law by West-Thompson Publishing.  It’s a very readable treatise even for the layman. A great “how to” treatise is “Drafting Marital Contracts in Florida.”

If you’re not up for a 1000 page read, you can simply google your issue. Many family law lawyers such as myself maintain blogs where we share our knowledge of family law as it relates to particular issues we have encountered or researched.

Make sure you are only getting advice from Florida family law lawyers. Generic legal advice or out-of-state legal advice does not apply to a Florida family law case. Advice from a non-lawyer is worse than useless. Non-lawyers do not write about the law to educate the public. Non-lawyer’s write to vent because something went wrong in their family law case (which de facto means they don’t know what they’re doing)

Do not merely read a family law lawyer’s blog and think that’s the end of the issue. Read the actual law and rules the family law lawyer is referring to. Your facts may not fit the scenario as described by the family law lawyer’s article. It is wonderful that you are educating yourself on Florida family law so that you can be fully engaged in your Naples, Florida family law case. But, you’ve now realized that this is not like watching a Youtube video that teaches you how to unclog a toilet. Once you’ve learned one thing about family law, you simply educate yourself as to how much you do not know.

If you’ve read this far, you are my kind of person: inquisitive and engaged. Contact my Naples, Florida family law firm to personally discuss your Naples, Florida family law situation.