Getting served with divorce papers is a dramatic event. A stranger comes to your home or work asks your name and then hands you divorce papers. Whether you knew you were going to get divorced or not, getting served divorce papers is not the most delicate of situations. If you were served with divorce papers in Naples, Florida you’ll need to know a few things.
The Summons: Personal Service On An Individual
Part of the divorce papers that are served are actually called a “Summons.” A summons is a document that starts every lawsuit and alerts the Defendant/Respondent that there is a case against them.
Attached to the summons should be the actual Petition for Dissolution of Marriage that outlines a summary of what the petitioner believes are the facts in the case and what the petitioner is asking the court to do based on those facts.
All Florida divorce cases use the same summons form. This form has a lot of seemingly harsh language. That harsh language is there to get your attention so you should really pay attention because the dates on the form are very important.
The Florida Family Law Summons reads:
“A lawsuit has been filed against you. You have 20 calendar days after this summons is served on you to file a written response to the attached complaint/petition with the clerk of this circuit court. A phone call will not protect you.”
20 days is not a lot of time to do what the instructions say, that you must “file a written response.”
The instructions don’t tell you what should be in the written response because that all depends on what was in the Petition for Dissolution of Marriage which is attached to the summons. The standard Florida summons does provide some instructions, though:
“Your written response, including the case number given above and the names of the parties, must be filed if you want the Court to hear your side of the case. If you do not file your written response on time, you may lose the case, and your wages, money, and property may be taken thereafter without further warning from the Court. There are other legal requirements. You may want to call an attorney right away. If you do not know an attorney, you may call an attorney referral service or a legal aid office (listed in the phone book).”
The summons provides good advice. “CALL AN ATTORNEY RIGHT AWAY.” It even tells you what to do if you don’t know an attorney. “YOU MAY CALL AN ATTORNEY REFERRAL SERVICE OR A LEGAL AID OFFICE (LISTED IN THE PHONE BOOK).”
Obviously, this form is a little dated as no one uses a phone book anymore and people usually just use a search engine like Google to find an attorney referral service.
The most useful local attorney referral service is the Collier County Bar Association’s Lawyer Referral program. For $ 50, you can get a 30-minute consultation with an experienced local family law attorney. This is a great deal as lawyers can charge up to $ 500 for a consultation in Naples, Florida.
Upon hiring an attorney, the attorney will then prepare a written answer to the Petition for Dissolution of Marriage and file their appearance in the matter so the opposing party and their attorney know to direct all future correspondence to the attorney.
You do not have to hire an attorney (despite the old adage that” the self-represented have a fool for a client”). The summons provides instructions on what to do if you file your own written response.
“If you choose to file a written response yourself, at the same time you file your written response to the Court, you must also mail or take a copy of your written response to the “Plaintiff/ Plaintiff’s Attorney” named below.”
If you don’t file a written response, the opposing party can file a motion for default after 20 days asking that you be held by the court to be in “default” and that the court subsequently enter a final order entering all of the items requested for in the Petition For Dissolution of Marriage.
How To Avoid Service Of Divorce Papers
Avoiding service is almost never advisable. Avoiding service just delays the inevitable. Without service and a written answer on your behalf, your spouse can use the Collier County court system while you cannot. This may mean frozen bank accounts or even ex-parte orders regarding custody of children.
If you know or suspect your spouse has filed for divorce in Collier County, Florida, but you don’t want to be embarrassed by a process server approaching you at your home or work, you have a few options:
- Just look up your case at the Collier County Courthouse and file an appearance. An appearance lets the other side know that you are aware of the case and you will be granted 20 days from that appearance filing to file your formal written response.
- A more roundabout way to avoid service is to request from your spouse or spouse’s attorney a “waiver of service.” They’ll gladly send you a form for you to sign and return that acknowledges service without the formality of actually being served.
What Can Happen After I’m Served?
After service, you’re now under the power of the judge’s standing order. The Collier County family law judges (as of the date of this writing) both use a standing order.
There is one standing order for litigants with children and one standing order for litigants without children.
For litigants with children the standing order states that “Within 60 days of the date of filing of the Petition for Dissolution of Marriage, the parties/Parents SHALL agree on a schedule for the child/children to spend time with each of them during the pendency of this Case. The parties shall reduce this schedule to writing and each sign said agreement within this 60 day period. If the parties fail to do so, at the time that one or both of them determine that they will be able to so agree (not later than the expiration of the 60 day time perod), then they SHALL schedule a future hearing. If a hearing is so scheduled, the parties SHALL mediate this issue prior to this hearing (if they have not already), though the parties may obtain the hearing date prior to completing mediation.”
So, if your spouse has filed for divorce in Collier County, Florida, you have to make arrangements for the children’s schedule as soon as possible. If you can’t agree you must go to a hearing or mediation within 60 days.
Child support is encouraged to be paid but not ordered by the standing order until the court makes a temporary order.
You absolutely cannot move with the children while a divorce case is pending. The standing order states “Neither party will remove, cause to be removed, nor permit the removal of any minor children of the parties from their current county of residence for residential purposes without written agreement of both parties or Court order. The intent of this restriction is not to prohibit temporary travel within the State of Florida. The children shall not be taken outside of the State of Florida without the written agreement of both parties or a court order. Neither party shall apply for any passport or passport services on behalf of the children. While it is not necessary for parents to know the location of their children every minute of the day when the children are in the physical custody of the other parent, both parents are entitled to know the location and phone number where the children are living and/or spending the night when they are in the custody of the other parent.”
For Collier County residents who are divorcing whether they have children or not, they must follow a series of rules to keep everything in the same status quo as of the date of filing until further order of court.
“Neither party will conceal, damage, or dispose of any asset, whether jointly or separately owned, nor will either party dissipate the value of any asset (for example, by adding a mortgage to real estate) except by written consent of the parties or Court Order. The parties shall NOT cancel or cause to be canceled any utilities, including telephone, electric or water and sewer. The parties may spend their income in the ordinary course of their personal and family affairs. The parties shall NOT conceal, hoard, or waste jointly owned funds whether in the form of cash, bank accounts or other highly liquid assets, except said funds can be spent on the necessities of life but only if the parties’ regular incomes has been expended for such. Any party who violates this order will be required to render an accounting and may be later sanctioned for wasting a marital asst. The court may award fewer assets to a violator of this provision to compensate the other spouse.”
The standing order goes on to elaborate that retirement accounts and insurance policies must remain in place as well.
If you’ve been served with divorce papers in Naples, Collier County, Florida, call my family law firm to schedule a free consultation with an experienced divorce lawyer.