While most of my previous articles describe how Florida law is applied in a divorce case. It is very difficult to describe accurately how the law is applied and when. Below, I outline the entire Florida divorce court process in summary. The actual Florida Family Law Rules Of Civil Procedure are 175 pages long and presume a great familiarity with both the underlying law and the rules of evidence. I have tried my best to distill the process down for the lay person who is going through the process.
Divorce vs. Parentage Cases
Married people can get divorced and unwind their relationship as to both their assets, debts, alimony and, if there are children, support and issues relating to parenting time.
Non-married people are treated as though they were strangers UNLESS they had children. If non-married people had children together they use the same set of Florida family laws and procedures as married people do. Non-married people, however, can only use these laws for determining parenting time and child support
What if I lived with my boyfriend or girlfriend for 20 years?
There is no common law marriage or palimony in Florida. You’re either married or you’re not.
What if I bought a house with my boyfriend?
Then the law treats you as two people who went into a house buying business together. You’ll have to go to civil court to unwind your affairs just like two business partners would.
Both types of cases start with a pleading requesting relief. A pleading is essentially a letter to the court asking the court to do something. Example: Give me a divorce, award me alimony, child support and custody of my child.
Can I File My Family Law Case in Florida?
You can only file your family law case in Florida if you have lived in Florida for 6 months.
If you have travelled outside of Florida during those six months, the law looks to your intent. If you were travelling on business or you were on vacation, you are deemed to still be living in Florida for period that time.
If you have children, you can only handle the child related aspects of your divorce in Florida in the county where the children have lived for the last six months.
In Collier County, Florida the filing fees for a divorce are $ 408. The filing fees for a parentage action are $ 300.
A party may file a petition to waive fees if they believe their income to be sufficiently low and their obligations (children) sufficiently high
Florida describes the two parties to a family law matter as the petitioner and the respondent. This eliminates the negative context of describing the person who doesn’t file as the “defendant”
After a case is filed, the respondent must be served or they may file their own appearance in the case which waives service.
Service is the formal notice of the law suit whereby a process server presents the respondent with notice that they are a party to the lawsuit.
Typically, a licensed process service company is hired by the petitioner but the court can appoint any non-interested person to serve the respondent.
When the process server has served the respondent, the process server fills out an affidavit of service and the petitioner’s attorney files that affidavit of service with the court.
More typically, the dramatic act of service is avoided by simply mailing the respondent the documents and asking them to waive service. If the respondent agrees to waive service, they have 60 days to formally reply to the divorce or parentage petition.
What If You Can’t Serve The Respondent?
If you have no idea where the respondent lives, works or simply is you must file an affidavit of diligent search and inquiry where you must testify that. Include rules per statute
Upon filing an affidavit of diligent search and inquiry you can publish notice of your divorce or family law case in the local newspaper. This is called service by publication.
Service by publication will allow you to divorce and even give you custody of the children but all other issues are reserved until the respondent is eventually served or files their appearance.
What Happens If The Respondent Does Not Answer the Petition After Being Served?
If the respondent has been served and they do not file anything with the court indicating that they will be part of the process after 20 days the respondent can be defaulted.
A default divorce or parentage action means the petitioner gets to enter final orders as they see fit (within reason and supervision of the court) based on what they asked for in the pleading which was served.
How Do I Answer A Divorce or Family Law Pleading?
Every pleading needs to be answered or the respondent will be defaulted.
A pleading is a list of “claims” or alleged facts. The claims are usually straightforward like “We were married in 1997. We had two kids. He makes more than I do.”
The answer has to admit, deny or claim insufficient knowledge of each particular claim.
If you don’t answer a claim, you effectively admit to that claim.
While answering a claim, you can also file your own pleadings under the same case. For example, if your husband files for divorce, you can file for child support.
What Can I Ask For In My Divorce or Parentage Pleading?
If you are requesting a divorce, you can ask the court to award you a division of the marital assets and debts, an award of alimony, a parenting schedule and child support.
If you are filing a parentage action you can only ask the court to enter a parenting schedule and an award of child support.
How the court decides these matters will be addressed later in the substantive section.
What Must Be Done Before The Court Decides On The Pleadings?
Most parties come to an agreement on all matters through mediation and negotiation.
Until that moment of agreement, there are certain requirements the courts put upon both parties to comply with what’s called “discovery.”
Both parties must fill out and file a financial affidavit. The financial affidavit is a form that all family law petitioners and respondents must fill out detailing broadly their assets, debts and income.
Personal information such as Social Security Numbers, Account numbers and even email addresses are not to be included in this public filing.
The financial affidavit is filed publicly but all other financial documents are merely exchanged between the parties.
The following MUST be exchanged between the parties unless otherwise waived:
* All federal and state income tax returns, gift tax returns, and intangible personal property tax returns filed by the party or on the party’s behalf for the past 3 years.
* IRS forms W-2, 1099, and K-1 for the past year, if the income tax return for that year has not been prepared.
* Pay stubs or other evidence of earned income for the 3 months before service of the financial affidavit.
* A statement by the producing party identifying the amount and source of all income received from any source during the 3 months preceding the service of the financial affidavit required by this rule if not reflected on the pay stubs produced.
* All loan applications and financial statements prepared or used within the 12 months preceding service of that party’s financial affidavit required by this rule, whether for the purpose of obtaining or attempting to obtain credit or for any other purpose.
* All deeds within the last 3 years, all promissory notes within the last 12 months, and all present leases.
* The last 3 months for all checking accounts and the last 12 months for all other accounts (for example, savings accounts, money market funds, certificates of deposit, etc
* The most recent statement for any profit sharing, retirement, deferred compensation, or pension plan (for example, IRA, 401(k), 403(b), SEP, KEOGH, or other similar account)
* The declarations page, the last periodic statement, and the certificate for all life insurance policies insuring the party’s life or the life of the party’s spouse and all current health and dental insurance cards covering either of the parties and/or their dependent children.
* Corporate, partnership, and trust tax returns for the last 3 tax years if the party has an ownership or interest in a corporation, partnership, or trust greater than or equal to 30%.
* All promissory notes for the last 12 months, all credit card and charge account statements and other records showing the party’s indebtedness as of the date of the filing of this action and for the last 3 months, and all present lease agreements
* All written premarital or marital agreements entered into at any time between the parties to this marriage, whether before or during the marriage. Additionally, in any modification proceeding, each party must serve on the opposing party all written agreements entered into between them at any time since the order to be modified was entered.
* All documents and tangible evidence supporting the producing party’s claim that an asset or liability is nonmarital, for enhancement or appreciation of nonmarital property, or for an unequal distribution of marital property.
* Any court orders directing a party to pay or receive spousal or child support.
That’s a lot of information but most of it does not apply to all couples. Especially if both parties are W2 employees like most Americans are.
Can I Ask The Court For Temporary Help Before the Trial?
Yes. There are numerous things the court can be asked for during the pendency of your divorce or parentage action.
The courts will decide these temporary issues and much more using the same fundamental family laws that the court uses to decide final matters. A temporary order is temporary and is extinguished upon the resolution of the case.
Temporary injunctions are special tough. A temporary injunction allows a temporary order that a party must or must not do something if some kind of irreparable harm might happen. This can be anything from spending marital money to destroying evidence. Injunctions don’t last beyond a stated period of time.
In the case of domestic, physical or sexual abuse, a temporary injunction may be renewed indefinitely.
How Are My Kids Considered In a Divorce?
While all the discovery matters discussed have dealt with financial issues, the children themselves may be subject to investigation to determine parenting time and custody issues.
A child evaluator is an expert, usually a psychologist, appointed by the court to interview the children and issue a report on what they believe will be in the best interests of the child.
Alternatively, a social investigator may be appointed by the court. A social investigator serves the same purposes as a child evaluator except their responsibilities are much more in depth. They will not only issue a report regarding the best interests of the children, they will craft parenting plans. To get into all of these details, the social investigator will visit both homes and interview everyone in the case.
These reports and the testimony of the child evaluator or social investigator may be used by the courts in determining both temporary and final parenting time and parenting responsibilities.
While judges decide final divorce issues and are the only ones who can issue a divorce decree, the temporary issues are typically decided by Magistrates.
Magistrates are essentially the judge’s employee. Magistrates are attorneys who follow the judge’s policies along with all the same laws that a judge would follow including the rules of evidence.
This can be confusing but the court system simply can’t accommodate the many minor issues like temporary parenting time and temporary child support. So, the magistrates handle those more minor matters.
If you don’t like a magistrate’s recommendation, you can reject the recommendation and go back to the judge. As you can probably guess, judges don’t like this.
In fact, you can reject going to a magistrate completely and have everything done in front of a judge if you so elect. Again, judges don’t like this.
If it’s an emergency matter, though, a judge will be the one who hears it.
Think of the magistrate and the judge as a team you are in front of. Often, a temporary motion is a good opportunity to practice the facts of your case in front of the junior member of the team. The final orders will be the judge’s orders…but they will be colored by the temporary orders.
All contested family matters in Florida may be referred to mediation. If you aren’t completely agreed, you’re going to mediation.
You can use a private mediator by agreement or you can ask the county to appoint a mediator at court mandated rates.
Court mandated mediation costs are as follows:
$ 120 per person per scheduled session if both parties make less than $ 100,000 a year.
$ 60 per person per scheduled session if both parties make less than $ 100,000 a year.
While you have to go to mediation, you are not required to participate. If you decide to cross your arms and say nothing, you will have satisfied the mediation order (Please don’t do this).
If you reach an agreement at mediation, the lawyers will write the agreement up.
After you sign the mediated agreement, you have 10 days to reconsider. After that, you and your spouse are locked into the agreement.
What If I Need More Information Than The Mandatory Disclosure Provides?
If you’re this far into the case and you still haven’t settled usually there is still some kind of “unknown” out there.
If you want to know something that your spouse or a third party knows, there are many tools available to your and your Florida divorce lawyer.
You can issue your spouse the standard family law interrogatories. This is a list of questions the Florida Supreme Court has approved and makes a great starting point for gathering information.
You can issue a request for production of documents. This is essentially a list of any document you can think of that you’d like to see that your spouse has under his or her control.
You can issue a notice of production from a non-Party or a subpoena for documents to a 3rd party. If there’s a document you want and your spouse does not have it under his or her control, you or your lawyer can simply issue these requests to the person who does control the document (example: a bank) and they have to object or issue the document.
Finally, you can question anyone outside of a courtroom setting but still in a lawyerly manner through a deposition. A deposition is a scheduled meeting where a lawyer can question a person under oath and have the questions recorded. Depositions allow for verification, back-and-forth conversation and lots of follow up in the relatively casual atmosphere of a lawyer’s office.
Case Management Conference
While all the discovery and temporary motions are getting resolved the court is likely to order a big meeting between the attorneys to get everything in the case organized. This meeting is called a case management conference.
At a case management conference the court will set time limits to get various things done. If you miss the time limit, you simply won’t be allowed to do that particular thing (ex: ask for a deposition).
Before a divorce trial happens, a pretrial will be set by the court.
A divorce trial is really not a “whodunnit” or even a “he said/she said” situation. Almost all of the facts will be agreed. Ex: You were married in 1988, you had two kids, you make $ 65,000 a year.
A pretrial will narrow down the issues of the case and establish exactly what the agreed facts are via a stipulation of facts or an admission of facts.
A pretrial allows a last-chance amendment to any pleadings based on facts that were discovered since the filing of the original pleadings.
While a pretrial gears everyone up for trial, in reality, a pretrial often illicits a recommendation from the judge which encourages final settlement.
How Soon Is The Trial?
Each judge has their own individual calendar for scheduling trial.
If you’re over 65 you can motion the court to advance the trial to the front of the line under the theory that your health may deteriorate while you wait for trial.
Hardly any divorce or parentage action actually goes to trial. Mediation and negotiation resolve many if not most issues.
Typically, the parties have each proposed final documents to the court if the judge requests them.
The parties will have agreed to a “stipulation of facts” in which they have signed off on a list of the facts upon which both parties do agree. In the case of parentage or divorce, a shockingly high percentage of facts will be agreed to (when the couple was married, the assets, the incomes, who the children are).
It is merely the application of these stipulated facts to the law which becomes contested. Example: What will alimony be? Are these assets marital or not? Who will the children live with.
In fact, all of these issues will have been narrowed down at the pre-trial a few months prior so there will be no surprises at trial.
Trials are conducted according to the rules of evidence. The rules of evidence are byzantine set of rules all civil lawyers use to enter evidence into the court for the court to consider. Evidence can be testimony or evidence can be physical objects like documents.
In theory, the court takes in all the evidence presented and ONLY uses the evidence that has been admitted when making a final decision.
Can You Have a Jury Trial In a Florida Divorce?
The Florida state constitution guarantees you a jury in a civil dispute and a divorce is a civil dispute. No one ever does this, however, as it is unduly cumbersome and blatantly foolish to have 12 strangers with no experience in family law decide you and your family’s fate.
What If You Disagree With The Judge?
If the judge has made a ruling and you believe there has been a mistake or fraud you can file a motion bringing the issues of mistake, newly discovered evidence or fraud before the judge within a reasonable amount of time (basically, after you discovered the mistake, misrepresentation or fraud)
If there has been no mistake of facts and you believe there has been a mistake in the application of the law, your only remaining option is to file an appeal asking that an appeals court review the judge’s decision.
If you’d like to learn more about the Florida divorce process, contact my Naples, Florida law firm for a free consultation with an experienced divorce lawyer.