Divorce covers a wide array of financial and non-financial issues. Not surprisingly, there is a corresponding array of documents, also known as pleadings or forms, which are filed with the Court in Florida divorce cases.
Divorce is Technically a Lawsuit
This guide covers every type of Florida divorce pleadings or Florida divorce documents that get filed in a divorce case, including:
- Initial Pleadings: This covers the initial volley of documents between the two parties to start a lawsuit. If you have been “served” with a lawsuit and are trying to make sense of the packet of documents you have received, start here.
- Notices: Certain things in family court take place outside of the court file. Document disclosure and mediation are two great examples. While the Court does not need to be privy to every document that is disclosed and the nature of the settlement agreement, the Court does need to be noticed that everybody is doing what they are supposed to do. Notices are divorce forms that inform the Court and the other side that certain events are transpiring.
- Motions: If you want relief from the Court, you have to ask for it. Motions are written requests for the Court to provide relief by issuing an Order for a party to do something or not to do something.
- Requests: “Requests” are a discovery tool where one party goes directly to the other party and requests certain relevant disclosure. The “request” part is a bit of a misnomer; in essence requests are really demands to act.
- Affidavits: Sometimes a party will need to swear under oath to the truth of statements or facts. Florida has developed a few standardized affidavits to help move along the divorce process. The most common affidavit pleading is the “Financial Affidavit” required in every divorce matter.
- Orders: Orders are the rule of the land. After all the lawyering and arguing is done, if an agreement has not been reached it falls on the Judge to make an Order. The final result of your divorce if you go to trial, for example, will be in the form of an Order from the Judge.
The Petition for Dissolution of Marriage is the document that “kicks off” the divorce lawsuit. The filing of this document creates the case and gives jurisdiction to the Judge.
Sample Petition for Divorce
An Outline of Your Divorce Issues
Your divorce will have one or all of the following issues that need to be addressed in the Petition so that the Judge can resolve them:
- Equitable Distribution: Division of marital and non-marital assets and debts.
- Parental Responsibility: Child custody issues.
- Alimony: Spousal support, if any.
- Child Support: Child support, if any.
- Everything Else: This includes requests that one spouse pays attorney’s fees and divorce costs for the other spouse.
If the Petition was filed by the other party and, for tactical reasons, did not include one or more of the issues above, but you want the Judge to address those issues, then you will need to file a Counter-Petition.
Jurisdiction and Other Requirements
The Petition for Dissolution also states certain factual requirements that you will need to have in order to get a divorce in Florida. These include:
- Jurisdiction: Florida requires that at least one of the parties in a divorce be a resident of the state for at least six months prior to filing the Petition for Divorce. This is always “pled” in the Petition.
- Venue: There are rules as to which county in Florida is an appropriate venue to hear the case. This is addressed in the Petition.
Jurisdiction and Venue in one paragraph
- Grounds for Divorce: Florida is a “no fault” divorce state. In other states, you need to “prove up” certain grounds for divorce, like marital misconduct or cheating. Not in Florida. The Court presumes that if one of the parties does not want to stay married, then it is not any of their business to keep them married. Accordingly, in Florida you have grounds for divorce if “irreconcilable differences” exist. This is pled in the Petition for Dissolution.
- The number of children, if any, and the wife’s status as pregnant or expecting children. In Florida, the Court needs to know if the wife is pregnant during the divorce proceeding. If she is, then the husband is presumed to be the father. If the Father contests that the child is his, then the Court will usually hold off on deciding custody and child support for the unborn child until after the child is born and paternity is determined.
Why You Let Your Attorney Sign the Petition on Your Behalf
Best practices suggest that we don’t have our clients sign any documents with the Court that they do not have to sign. The reason is simple: The ATTORNEY is the one drafting the Petition and making the statements, and the attorney should use this as an opportunity to minimize the number of documents that can be used by opposing counsel as possible impeachment later on in litigation. Because a pleading that is not signed by the client cannot be used to impeach the client at a later hearing, the attorney has a little more room to craft a narrative in the pleading that best tells your factual basis for the relief requested.
FAQ About the Petition for Dissolution of Marriage
1. Do Both Parties Have to Reside in Florida for the Petition to be Valid?
No. For jurisdiction to be proper in the State of Florida, only one of the parties is required to be a resident of the State of Florida. This party can be either the person filing the divorce paperwork or the person answering the paperwork.
2. They are Asking for the Kitchen Sink! Why?
Simply put, either your spouse really wants to “take you to the cleaners,” or the attorney for your spouse is simply preserving the right to ask for issues later. A common example is the request for every type of alimony, including rehabilitative, durational, permanent, and bridge-the-gap. Often, it is too early for the spouse requesting to know what type of alimony will ultimately be requested and for how long. Yet in Florida, if you do not ask in the Petition, you do not preserve your right to ask later. The “kitchen sink” request may just be to protect the rights of the client filing the Petition.
Asking for every type of alimony!
3. My Petition Has a Count for a Partition of the Home. What Does That Mean?
With a normal divorce petition, the Court only has the right to give property to one of the parties. Sometimes, however, the best course of action is for the Court to Order the sale of the real property. A Petition for Partition is a legal request that gives the Court the jurisdiction to Order the sale of the home.
These are the two affidavits that are signed and executed in every divorce case.
Swearing the Other Party is a Civilian
The party filing the Petition (and starting the divorce) will also need to file an affidavit testifying whether or not the respondent is a member of the armed forces. Federal law, particularly the United States Soldiers and Sailors Relief Act, requires the State Courts to take certain actions if an active duty member is being sued for divorce. The law wants those serving overseas in the line of duty to be able to focus on serving while not having to worry about getting defaulted on a civil lawsuit back home. Accordingly, a servicemember overseas might be able to “pause” the lawsuit through an automatic or permissive “stay” of the proceedings.
Automatic Stay: If a spouse files a Petition for Dissolution and the servicemember spouse does not answer, then the Judge cannot enter a default (grant the divorce without the spouse even filing an answer) for at least 90 days. The Court needs to appoint an attorney on behalf of the servicemember spouse to figure things out.
Permissive Stay: At all other times, the Judge can, if he or she thinks it is appropriate, grant a stay of proceedings for a military member.
The affidavit of military service puts the burden on the party filing for divorce to let the Court know if the other party is active duty military.
Disclosure of Your Social Security Number
Swearing to Your Social Security Number
Florida Statute 61.052(7&(8) requires the disclosure of social security numbers by affidavit in every divorce case.
The practical benefit is that by having the opposing party’s social security number, each party has the ability to subpoena financial and employment records (when applicable) without unneeded court intervention.
In the Petition for Dissolution, we plead facts that outline the Court’s jurisdiction over the parties. In the Uniform Child Custody Jurisdictional Enforcement Act (UCCJEA) affidavit, one of the parties swears that the Court has jurisdiction over minor children of the lawsuit.
So, if children are at issue in your divorce, and the Court needs to institute a parenting plan, then the UCCJEA must be filed and sworn to by the parties as part of the initial pleadings stages of the case.
The Uniform Child Custody Jurisdiction and Enforcement Act is adopted by every state except Massachusetts, and articulates which state has the right to determine child custody and which state has the right to modify child custody issues.
The Court Uses the UCCJEA Affidavit to Determine if Florida is the Child’s “Home State”
The UCCJEA assigns jurisdiction to a child’s “home state,” or the state where the child has lived with his or her parents for the last six months prior to filing for divorce or paternity.
If the child has not lived in a state for six months, then the proper place to bring the action is the state that has “significant connections” with the child and at least one parent and substantial evidence concerning the child’s care, protection, training, and personal relationships.
So, when we are in Court and the Court is getting ready to adopt your settlement agreement or rule on a Final Judgment, the Judge will look to the original UCCJEA affidavits to make sure that the Judge’s courtroom is the right place to finally decide custody.
Look Here to See if Florida is the Right State
Purposes of the Florida UCCJEA
Why all this hassle to determine the right jurisdiction for a child who will likely never see the courtroom? Florida adopted the UCCJEA in part to:
- Avoid competition and conflict between courts in other states in child custody matters that have resulted in children being shifted from state to state contrary to the children’s best interests.
- Promote cooperation between other states so that a final custody decree is rendered in the appropriate forum to make that decision
- Deter interstate abductions.
- Avoid forum shopping and re-litigating custody issues in multiple states.
- Promote the enforcement of custody decrees from other states.
- Make the law uniform among all the states. At this time, every state but Massachusetts has adopted the UCCJEA.
Once custody is decided in Florida, the State will have exclusive, continuing jurisdiction.
If the Petition for Dissolution of Marriage is the tennis serve that starts the divorce proceedings, the Answer is the return of that serve.
The Answer is a required pleading under the Florida Family Law Rules of Procedure. If you look back at the Petition for Dissolution, you’ll see that the petitioner made a number of factual allegations and listed the allegations by paragraph.
The Answer Admits or Denies the Facts in the Petition
The Answer will respond to each factual allegation by admitting or denying it. At its heart, the Answer is an opportunity for the parties to figure out at the outset which facts are agreed upon by the parties.
For example, it is not uncommon for the petitioner to plead that irreconcilable differences exist between the parties, and for the respondent to admit the truth of the statement in the Answer. The Court can look at the answer and see that there is one less thing to possibly fight about in the divorce.
If the respondent does not know whether a factual allegation is true or not, the respondent should respond that he or she is “without knowledge” as to the truth of the statement, and therefore deny the allegation.
The 20-Day Time Limit and the Answer
More important than the specific answers to each factual allegation is the need to actually file a written answer or responsive pleading with the Clerk of the Court. If the respondent does not answer at all, he or she runs the risk of the petitioning party asking the Clerk of the Court to enter a “default.” Courts believe that if the respondent fails to answer the divorce lawsuit, he or she must not really care what happens in the case. The Court could then grant any relief requested by the petitioning party without regard to the effect on the respondent. Failing to Answer the divorce can thus have a devastating impact on the respondent spouse.
While not required, the party answering the Petition has the option to file a Counter-Petition.
The Counter-Petition is just like a regular Petition. The counter-petitioner makes factual assertions regarding the jurisdiction of the case and about the big issues in a divorce: parental responsibility, equitable distribution, alimony, child support, and attorney’s fees.
Why File a Counter-Petition?
There are two main reasons to file a Counter-Petition with your Answer: to “prove up” the divorce and to request relief not requested by the petitioning party:
- “Prove up” Divorce: With any luck, your divorce will reach a total settlement at some point. A total settlement is when both spouses reach an agreement on all of the issues and do not need to litigate any further in front of the Judge. If that happens, one Court date will still be required. At that Court date, the Court will need a party who has filed a Petition or Counter-Petition to “prove” residency in Florida. If the respondent has filed a Counter-Petition, then either party can go to Court and handle this task.
- Request Additional Relief: In many cases, the petitioner may not request relief that the respondent would be requesting in a divorce. For example, many breadwinner spouses, if filing for divorce, may plead that alimony is not appropriate in the case. That means the Court does not have a sufficient request for alimony in its initial pleadings to award alimony. If the needy spouse is the respondent, he or she will absolutely want to file a Counter-Petition and request alimony relief. Remember: in Florida, if you want it, you need to request it in your initial pleadings.
The Summons is the official notice that a lawsuit is filed. The petitioner (person serving the divorce papers) drafts the summons and delivers it to the Clerk of the Court to stamp and sign, indicating that the lawsuit is filed.
The Summons Notifies the Respondent of the Lawsuit
The Clerk will then return the summons to the petitioner. In a normal case, the petitioner places the Summons on top of the Petition, affidavits, and anything else he or she wishes to serve with the initial lawsuit, and delivers to the process server to serve papers. And it is the process server who takes the paperwork and serves the respondent.
When the process server serves the summons and other divorce paperwork on the respondent, the process server will notify the petitioner and the Court by preparing an Affidavit of Service. This affidavit is then filed by the petitioner and made part of the Court file.
If a party is starting a divorce case and there are “related” cases involving the parties in Florida or another state, that party has an obligation to notify the Court by filing a Notice of Related Cases.
Notify the Court of Other Outstanding Cases
A case is considered “related” if:
- it involves any of the same parties, children, or issues and it is pending at the time the party files a family law case, or
- it affects the Court’s jurisdiction to proceed, or
- an order in the related case may conflict or affect an order on the same issues in the new divorce case, or
- an order in the new divorce case may conflict with an order in a previous case.
Requirements for the Notice of Related Cases
The notice of related cases must identify the caption and case number of the related case, contain a brief statement of the relationship of the actions, and contain a statement addressing whether assignment to one judge or another method of coordination will conserve judicial resources and promote efficiency.
This duty to inform the Court continues throughout the pending divorce action.
A common example in divorce proceedings is when a domestic violence injunction is filed at or the near the same time as a divorce proceeding. Domestic violence injunctions can, at least on a temporary basis, address issues related to a divorce such as time-sharing, alimony, and child support.
A Notice in a divorce case is often a simple page pleading notifying the Court and opposing counsel that an action has been or will be done. They fall into the following categories:
- Notice of Filing a Document: There are certain documents that the lawyer might need to file with the Clerk of the Court for the Judge’s reference. Common examples include financial affidavits and proof of completion of a parenting class. The attorney that files these documents with the Clerk will want to give a copy to opposing counsel, and make it clear that the documents were filed in the Court file. Common examples include Financial Affidavits and parenting class certificates. To make it abundantly clear what the Attorney is filing and when, the Attorney will prepare a Notice of Filing of the document.
- Notice of Service and Compliance: There are other documents that an attorney will want to serve on the opposing party during the divorce process that are forbidden from being in the Court file. For example, Florida has liberal financial document discovery rules, but Florida does NOT want the litigants to make financial documents a part of the Court record unless and until it is absolutely needed. As part of the discovery rules, the party requesting documents and the party turning over documents need to let the Court know what is going on.
- Notice of Intent to do Something: Sometimes, the rules of divorce court require an attorney to let the other side know they intend to do something in the future, to prevent one party from springing a surprise on the other party. For example, a Notice of Intent to Use Summaries is a document telling the Court of a litigant’s intent to summarize information for the Court’s use at a later date (usually trial).
- Notice of Hearing: Finally, attorneys set hearings on their Motions and Trials. After setting the hearing with the Judge and clearing the hearing with opposing counsel, the attorney will file a Notice of the Hearing with the Court to confirm with everybody the date, time, and place of the hearing. Often, the first thing a Judge will do at a Motion or other hearing is confirm that the attorney or party requesting relief has filed the appropriate Notice for the Hearing.
The party setting a hearing in front of a Judge has an obligation to serve a Notice of Hearing on the opposing party, and file proof of the service in the Court file. If a party fails to file a Notice of Hearing, a party could get all the way to the Court hearing only to be turned away by a busy divorce judge on the technicality of the failure to file the Notice. They are important.
Notice of the type of hearing, the place, the date, and the time.
In Florida divorce court, hearings include any Court time on a Motion, Case Management Conference, Pretrial, or Trial.
The Notice of Hearing should define the following:
- the scope of the hearing, (what are the motions or issues to be heard?)
- the place of the hearing,
- the date of the hearing,
- the time of the hearing, and
- the duration of the hearing.
Note that by filing a Notice of Hearing, a party is certifying to the Court that they have followed the rules of courtroom civility and have made a good faith effort to coordinate the hearing with the other side. In other words, you are not supposed to just pick a hearing date and go; it needs to be agreed upon.
There are points when a party wants to notify the Court that he or she is serving documents on another party.
Example Notice of Service of Standard Interrogatories
For example, in a Florida divorce case a party will likely serve a Notice of Service of Standard Interrogatories on the other party. This informs the Court that the documentation has been served on the other party, and starts the tolling of any dates or deadlines to get the documents back.
Arguably outdated with advent of e-filing, both sides must still prepare a Notice of Filing of a document when filing a Florida divorce document with the Clerk of the Court. Often thought of as a “cover letter” for the document filed, a copy of the Notice is then sent to opposing counsel.
Notice of Filing Example
Common examples of documents that require a Notice include the Financial Affidavit, a parenting class, and any depositions that make their way into the Court file. In essence, any “major” document that is not in and of itself a pleading getting filed gets a pretty Notice of Filing. Presumably, this keeps the Court file updated for the Judge flipping through the case docket.
Florida divorce court trials and hearings can be document and data intensive. Sometimes drawing a conclusion or making a “point” about a particular issue requires a summary of the data into a format that is easy for the Judge to understand.
Florida family law attorneys utilize Motions to ask the Court to Order one or both parties to do or not do certain actions.
Motions are Requests for Relief from the Court
Generally, family law motions fall into one of the following categories:
- Temporary Relief: Sometimes issues arise during divorce proceedings that need a temporary fix to hold everyone over until the parties can have their final hearing. Considering an average case can take at least nine to 12 months to get to a final trial date, a party needs to have an opportunity to get temporary help from the Court. Common examples include Motions for temporary time-sharing, child support, and alimony.
- Compel Behavior: Parties are “supposed” to do certain things during a divorce. Both parties, for example, are supposed to provide financial disclosure to the other party in the discovery stage of the divorce. Sometimes, however, a party does not do what he or she was supposed to do, and the other party needs to ask the Court to compel certain behavior. A common example is a Motion to Compel Financial Disclosure.
- Enforce Prior Orders and Punish a Party for Failure to Obey the Court: Relatedly, sometimes the Court does Order parties to act in a certain way, and the parties fail to comply. In these cases, the offended party can seek a Court Order to enforce the prior Order or punish the party who fails to comply.
- Appoint an Expert: Some cases have complicated issues or scenarios that require an expert’s help to resolve. While the parties can agree to stipulate to the appointment of an expert, it takes two to tango. If one party objects, the party seeking expert help can file a Motion with the Clerk of Court to seek the appointment of an expert.
- Amend, Strike, or Dismiss Pleadings: Sometimes a party crosses the line with a particular pleading, either because it is improper, inflammatory, technically deficient, or all of the above. In these cases, the responding party can file a Motion asking the Court to order corrective action on the offending party.
- Allow Parties to be Removed From a Case: Finally, sometimes a lawyer or expert wishes to be removed from the case. In such a case, Motions can be utilized to appropriately relieve a party from the matter at hand.
Notice of Intent to Use Summaries or Charts
For example, perhaps the “point” to be made is that one of the parties blew an unreasonable amount of marital monies during the nine to 12 months between the filing of divorce and the final divorce hearing. Introducing nine to 12 months of bank statements and asking the Judge to examine the spending line by line would cause the Judge’s eyes to glaze over.
However, summarizing the information in a one page format can be much more powerful and useful for the Judge. The rules of evidence in Florida allow such a piece of evidence as long as the party files a Notice of Intent to Use Summaries within a reasonable time period before the final hearing.
The Notice of Intent to Use Summaries simply notifies the other party that a summary has been created for use at trial, and offering that party the option to review the Summary in advance. This is because the other party needs the opportunity to review the Summary for factual accuracy.
The party and his lawyer can create summaries. Third-party experts who may testify can also create them. Commonly, forensic accountants asked to testify on issues such as the “standard of living” of a party in an alimony case, or an asset valuation, will summarize his or her findings for the Court.
A Motion to Dismiss in a Florida divorce case is a request for the Court to dismiss, or terminate, a lawsuit.
A party cannot move to dismiss a divorce case simply because they do not want to get divorced. Rather, parties can move to dismiss a divorce case because the divorce was filed in the wrong place.
The most common type of Motion to Dismiss in Florida is the Motion to Dismiss for Lack of Subject Matter Jurisdiction.
To get divorced in Florida, one of the parties must have been a resident of Florida for the six months prior to filing the Petition for Dissolution of Marriage. This is required and cannot be “waived” by agreement of the parties. However, the question of what actually is “residency” comes up often. Especially when one or both parties have homes in multiple states.
Definition of Residence
In Florida, residence is defined as actual presence in Florida coupled with intent to make Florida the place of residence.
Yet, perhaps contradictorily, the party does not have to actually be present during the previous six months if they are temporarily domiciling somewhere else.
So, for example, if a party had established residence in Florida but was temporarily traveling or staying elsewhere but maintained residency in Florida, then that party would maintain Florida residence.
Interestingly, once you file, you can move and still have jurisdiction in Florida for purposes of the divorce, even while the divorce action is pending.
Residence in Two States
Sometimes the facts suggest that a party may be a resident of two (or more) states. Think of snowbirds that come to Florida for the winter. Then we need to figure out which state appears to be the primary residence. The test is the “chief seat of the party’s household affairs or interests”. Beaucamp v. Beaucamp, 508 So.2d 419 (Fla 2DCA 1987).
Needless to say, these cases can turn on very specific facts, including:
- how many months per year a party resides in a given state,
- where the party has a valid driver’s license,
- where the party is registered to vote,
- where the party maintains bank accounts,
- where the party pays state taxes, and
- where the party registers automobiles.
A party filing a Motion to Dismiss for Improper Venue is saying that Florida is the right state to get divorced, but the case is filed in the wrong county.
In Florida divorce courts, the proper venue, or county, to file divorce paperwork is the county that the parties last resided together as a marital couple or the county where the non-filing spouse resides. Note, however, that an out-of-state spouse cannot object to venue. Also, unlike Motions to Dismiss for jurisdictional issues, a Motion to Dismiss for Improper Venue must be filed before filing an Answer, or else the objection to the venue is deemed “waived” by the Court.
A more appropriate Motion to file would be a Motion to Transfer to Another Venue. This would save the filing party the fees and costs associated with re-filing the Case in another county.
A Motion to Strike is a request to strike some or all of the other party’s pleading.
Florida Rule of Civil Procedure § 1.140(f) provides that a party may move to strike or the court may strike redundant, immaterial, impertinent, or scandalous matter from any pleading at any time. In effect, the person who files a Motion to Strike is saying, “Judge, some or all of that written document filed by opposing counsel is so ridiculous, irrelevant, or inflammatory that you should strike it from the record before hearing arguments on the issue in a hearing.”
In Florida divorce courts, a Motion to Strike can be used (sometimes with a Motion for Sanctions) to slow down a “bomber” attorney who is wreaking havoc and running up emotions or bills for no apparent reason.
For example, perhaps a lawyer drafts and files a Motion with the Court for temporary relief that is littered with ridiculous allegations, perhaps of adultery or some other factual allegation that does not matter for the purposes of the temporary relief motion. (Remember, Florida is a no-fault state, so evidence of adultery has a very limited purpose and use in divorce court.) It is clear that the language in the motion is an attempt to inflame the emotions of the parties, which is not beneficial in any manner to reaching a reasonable resolution in a divorce case. The lawyer on the other side might promptly file a Motion to Strike to make a point to the Judge and the other attorney (as well as the other party) that such behavior is counterproductive and inappropriate. Setting the Motion to Strike for a hearing is a way of turning the spotlight on the offending party’s attorney, hopefully discouraging inappropriate behavior going forward.
After filing initial pleadings, the parties in a divorce engage in a thorough discovery phase, where each party makes known to the other his or her income, expenses, assets, and debts. In most cases, both parties honor their obligation under Florida law to willingly engage in the process.
Florida law provides a deadline for this phase. Certain mandatory disclosure is due 45 days after the divorce paperwork is served. Additional requested documentation is due 30 days after the request.
If a party fails to turn over documents in a timely fashion, the other party can file with the Court a Motion to Compel the documentation. A Motion to Compel is a Motion asking the Judge to Order the offending party to turn over specific discovery documents by a specific date and time. The power of a granted Motion to Compel is it creates an Order from the Judge in the parties’ divorce case. If the offending party refuses to follow the Judge’s Order, the other party can ask the Judge to hold the party in contempt of court!
Good Faith Requests to Coordinate Disclosure Before Filing a Motion to Compel
When reviewing a Motion to Compel disclosure, remember that the law of the land is that the filing party needs to act in good faith before filing a Motion to Compel. While every county has its own specific rules, generally that requires sending a good faith letter to opposing counsel asking for the requested discovery.
The good faith letter articulates:
- the Discovery that is due,
- the Discovery we want (usually the same thing), listed with particularity, and
- a demand that the Discovery be turned over in a specific period of time.
If the good faith letter does not still get the job done, then we move on to filing the Motion to Compel.
Motion to Compel and Attorney’s Fees
Every Motion to Compel should request attorney’s fees from the other party.
That’s because the reason an aggrieved party has to file a Motion to Compel is the offending party is not “following the rules.” Therefore, the Motion to Compel is extra work that should not have to be done.
Besides, getting smacked with an Order to pay fees can have a coercive effect on the other party, encouraging him or her to act more appropriately in the future.
Judges take their orders to do things very seriously.
When a party violates an Order and you want to force them to comply, you can file a Motion with the Court seeking enforcement of the Order and asking the Judge to hold the other party in contempt.
What You Can Ask the Judge to Do If the Other Party Violates an Order
Florida law gives us a wide award of relief we can ask for from the Judge, including:
- ordering compliance with an Order within a set time frame,
- awarding a money judgment,
- garnishing wages if a money judgment was previously ordered,
- requiring the other party to pay fees and costs for your lawyer having to bring the Motion,
- ordering a compensatory or coercive fine,
- ordering jail time,
- ordering the Sheriff to take real or personal property from the other party,
- issuing an arrest warrant if the other party does not cooperate,
- requiring payments be automatically deducted from the other party’s paycheck,
- requiring the other party to seek employment if they are currently unemployed, and
- if children are involved, ordering make up time-sharing.
A Motion for Contempt needs to be personally served on the other party, unless his or her attorney accepts service on his or her behalf.
After filing a Motion for Contempt, we need to set a hearing in front of the Judge.
A Motion for Emergency Relief in a Florida divorce is a statement, signed by a party, that an imminent danger or condition exists that requires the Court to give it top priority, and act immediately.
The vast majority of Emergency Relief motions filed are denied by the Court without a hearing. That’s because what a party considers an emergency and what the Court considers an emergency are usually two separate things.
A Motion for Emergency Relief almost always requests “ex-parte” relief. That means the party requesting relief wants the Court to act NOW, based only on the facts alleged in the Motion, without notifying the other party, and grant a temporary Order until the Court can set a “return hearing.”
These return hearings are almost always granted very quickly. They must be granted quickly, because the granting of an ex-parte motion is granting a motion without notice and a hearing, or without “due process.”
For an Emergency Motion in Florida to be granted, the moving party must say that imminent danger exists and irreparable injury may result if the emergency relief is not granted and if notice is given. For example, if a party in a divorce is making allegations that he or she will flee the country with the minor children, and that party has the ability to do, the Court may find that an emergency exists.
A Court can do one of the following upon receipt of a Motion for Emergency Relief:
- Grant the request immediately without a hearing, but set a follow up hearing so that the respondent can be heard quickly.
- Not grant the request immediately, but set a follow up hearing very quickly, thus giving the hearing expedited status.
- Deny the request, and tell the party to take up the issue in the normal course of divorce business.
Sometimes, one or both of the parties can’t wait for a Final Hearing to get an Order in place.
Issues the Court Addresses at Temporary Relief Hearings
- Time-sharing: Where the child(ren) is going to spend overnights until the case is settled.
- Child Support: Financial assistance to the majority time-sharing spouse until the case is settled.
- Alimony: Support to the needy spouse.
- Assets and Debts: Sometimes maintaining assets and debts need to be addressed before the final judgment. If a distribution is sought, the party seeking the distribution will need to file a Motion for Interim Distribution.
- Possession of a Home: Sometimes both parties are in the home, causing an unsafe environment for the parties or the children. The Court has the power to order who lives in the home and who pays the bills for the home on a temporary basis.
Common Requirements Prior to Having a Temporary Relief Hearing
Financial Affidavits: When finances are at issue, the parties will need to both have filed and disclosed financial affidavits. This is per local rule as well as Florida Rule of Family Law Procedure 12.285.
Temporary Relief Disclosure: Even if mandatory disclosure is not due yet, the rule for Mandatory Disclosure also provides disclosure of certain documents by the moving party in every case no less than 48 hours before the hearing.
Temporary Relief Memorandum: This is a local rule in Hillsborough County, as well as other counties. The temporary relief memorandum enables the Judge to have a quick understanding of the case before the Motion. Remember, time is of the essence in temporary relief hearings.
Parenting Plan: If children are involved, the parties will both need to file and serve to each other proposed parenting plans. The parenting plan will spell out the time-sharing requested by each party.
A Motion for Interim Equitable Distribution is a request for the Court to “divide up” one or more marital assets during the divorce process but before the case is finalized. Florida law gives the divorce court to make such a distribution of assets only when there are extraordinary circumstances.
For example, in some circumstances the parties enter into financial troubles during the divorce. A party may lose a job or become voluntarily unemployed in an attempt to get a better resolution in Court. In these extraordinary circumstances, the Court can distribute assets to keep everyone afloat during the divorce process.
Common Assets Subject to Interim Equitable Distribution
Some common assets that are subject to interim equitable distribution include:
- Money Market Accounts,
- 401Ks and IRAs.
Sometimes the parents cannot agree on an appropriate time-sharing (child custody) plan.
In these, cases, the Court can order a social investigation by a qualified third-party witness. The professional will investigate the situation and report back to the Court.
Florida allows a party to make a Request for either physical documents or written admissions to questions from a party in a lawsuit or a third party. Phrasing these divorce pleadings as “requests” is a bit of a misnomer.
The other party must comply with the Requests, make an objection within a certain time period, or make a Motion to the Court for a Protective Order. If the party objects or moves for a Protective Order, the parties will have to duke it out in Court.
Requests are a family law court tool to aid both parties in Florida’s liberal discovery process. In most cases, the financially prudent thing to do is answer requests in a timely manner. Of course like everything else, there are strategic exceptions when it is worth the time, effort, and money to fight the issue in Court.
Florida is a liberal discovery state. Any documentation that might be relevant in a proceeding is discoverable. The Rule of Mandatory Disclosure requires parties to turn over some disclosure, but a party might want to look at more documents to figure out a good resolution in a Florida divorce case.
Request for admissions are a great discovery technique for one party to get another party to answer “yes” or “no” to a specific question.
Sample Request to Produce
For example, in an alimony case both parties may want to examine the spending habits of the parties for a term of years leading up to the divorce. If only one party has access to bank or credit card statements, they will want to request from the other party the documents needed.
Unfortunately, divorce attorneys in Florida rarely take the time to narrow the scope of a request to produce to what is truly needed in a given case. As a result, you might be seeing a 50-paragraph monster that is extremely intimidating. Your divorce attorney should go through the request and “summarize” the list of documents that you really need to get.
Why Do I Have to Turn Over a Document That is Not Admissible in Court?
Perhaps the opposing party wants copies of a non-marital account in Portugal. Or perhaps they are asking for documents of a business you started after you filed for divorce. Why do you have to turn it over?
Remember, the question is not whether a document in and of itself is admissible in Court. The question is: can the document possibly lead to relevant evidence now or down the road? And from that perspective, many documents should be disclosed that might not see the courtroom.
More importantly, you have to decide if it is worth fighting the issue of discovering the documents. In the vast majority of cases, it is simply cheaper and more efficient to turn over organized documentation than it is to go in front of the Judge on discovery issues. There are exceptions, but it is wise to always to decide if the financial costs of fighting discovery is worth it.
When You Want a “Yes” or a “No” Answer
Florida law permits a party to secure admissions to “statements or opinions of fact or of the application of law to fact.”
Strategically, the divorce attorney will usually use requests to produce documents, the rule of mandatory disclosure, and even Service of Interrogatories first to get the documents needed to sort out the basic issues and answers. Then, when there is still some confusion as to exactly what is going on, or if the documents show something fishy, a party can use the request for admissions to force the other party to state an affirmative or a negative answer under oath.
All of this can be available in the discovery process before taking depositions, although nothing procedurally stops a party from using requests for admissions at any time in the case before the Judge “closes” discovery.
The beauty of the request for admission is in its simplicity. Simply, the question is narrowly tailored and given to the other party who can “admit” or “deny.”
61.20 is the Statute That Deals With Custody Evaluations
These investigations usually involve going to the homes of both parents, interviewing the children, parents, and even any additional witnesses who might have relevant information. The investigations can take months to complete, and can have written reports that are between 25 to 50 pages! The reports are then admissible into evidence, and the third-party social investigator becomes a witness in the case.
Chapter 61.20 in the Florida Statutes lists the following qualified parties:
- a licensed child placing agency,
- a state-licensed Psychologist,
- a Clinical Social Worker,
- a marriage and family therapist,
- a Mental Health Counselor, or in some cases,
- a DCF worker.
The parents pay for the 61.20 Social Investigation. It is treated like any other “cost” in a divorce proceeding. The Court can order one parent to pay on a temporary basis, and “reserve” on the allocation of the costs until after the trial.
The actual costs of the investigation can vary greatly in accordance with the qualified investigator. The average cost can be between $3,000 and $6,000, with some of the most preeminent experts charging $20,000 or more per investigation!
A party’s mental health or physical health is “at issue” in a Florida divorce case when children are involved. While rarely used, a party has the ability to request another party to submit to a mental health exam at a reasonable time and place by a doctor of that party’s choosing.
The responding party can move the Court for a Protective Order if he or she objects to submitting to a mental health examination or physical health examination. However, Florida recognizes the right of the requesting party to request the mental health examination provided he or she has good cause.
When there is good cause in a contested time-sharing case, both parties are considered to have waived any privileged communication with treatment providers. That means the requesting party may also file a request for the responding party to complete a health authorization form, allowing the retrieval of records from third-party treatment providers.
An Affidavit is a written statement, given under oath or affirmation, which can be used as evidence in Court.
Affidavits are Signed Under Oath
Affidavits are important in Florida divorce cases, as they are some of the few statements “signed” by a party that make it into the Court file. For the most part, the Florida divorce attorney is able to sign pleas on behalf of the client. So the statements in most Florida divorce documents cannot be used to impeach a client later on.
Affidavits are different. These sworn statements are not only used to impeach a client, but also are often admissible into evidence as long as the attorney asks the right questions. Common affidavits include the Social Security Affidavit, the Non-Military Affidavit, the UCCJEA, the Financial Affidavit, Attorney’s Fees Affidavit (signed by the Attorney and not the client), and Interrogatories (which are written answers to questions that are verified under oath).
The Financial Affidavit is a special document in the eyes of the divorce court. The Affidavit is supposed to reflect a detailed summary of all of the disclosure that is required to be turned over pursuant to family law rules and requests for additional disclosure. As an Affidavit, the truth and accuracy of the detailed summary is sworn to by the filing party.
The Family Law Financial Affidavit: The Most Important Document in a Divorce
Because the document is so important, a Notice is filed reflecting the date and time of the filing of the Financial Affidavit. And because the document is so important, your divorce attorney will help you prepare the Financial Affidavit to ensure its accuracy.
While the Florida Divorce Financial Affidavit looks intimidating on first glance, it simply is two common financial documents combined into one. The first half of the affidavit reflects the monthly net income of the party minus the expenses incurred by the party. This looks very similar to the budget prepared by most American households.
The second half of the affidavit is the assets owned by the party minus outstanding debts. This document looks very similar to what accountants call a balance sheet, and reflects the net worth of the parties.
It is common for a proper financial affidavit to reflect the party’s budget at the time of execution of the document, but reflect a balance sheet for the party at a snapshot in time — often the date of filing. That is because in a divorce, the Court has to pick a valuation date for assets and debts. If the parties separate on or before the date of filing for divorce, a common used valuation date is the date of filing, and the Court will look to divide up assets and debts as of that date.
As a case progresses towards trial or other litigation, the attorney will want his client to file an amended Financial Affidavit. One common reason is if the filing party’s financial situation changes during the divorce. (For example, the parties’ separation happened after the first Financial Affidavit was filed.) The rules of Mandatory Disclosure require a divorce litigant to amend his or her Financial Affidavit whenever a material change in financial circumstances arises.
Another common reason is to create a “trial” Financial Affidavit that is as accurate, thorough, and detailed as possible. While the number of financial documents exchanged during a divorce can be overwhelming, the Judge wants nothing more than to be able to utilize one of the parties’ Financial Affidavits during Trial. Accordingly, a Financial Affidavit used in a Trial will often pinpoint the exact valuation date and source for all assets and debts, as well as pinpoint exact expenses (as opposed to the estimates commonly used in the first Financial Affidavit).
A party in a Florida divorce proceeding has the ability to ask the Court to make the other party pay for his or her fees. At a Motion for Attorney’s Fees, the divorce attorney for the party requesting the fees will file an affidavit swearing to the amount of fees incurred.
Sample Affidavit of Attorney’s Fees
Need and Ability to Pay
The most common situation whereby a request for fees is made is the “need and ability to pay” scenario. Florida courts have long recognized that parties in a marriage may have disparate incomes, usually as a result of one party focusing on his or her career while the other party focuses on the household and the children (although this is not always the case).
Florida does not want the spouse with the money to be able to afford a better attorney, or leverage the purse strings to get a better deal. As a result, the spouse in need can request from the Court that the higher income spouse pays relevant costs and fees.
The party requesting the financial support is entitled only to reasonable fees and costs. Florida uses what is called a Lodestar analysis, which looks at reasonableness in terms of hourly rate and time expended.
The Attorney’s Fees Affidavit in a Florida divorce spells out the amount of fees and articulates how the fees were calculated. In temporary relief cases, the Attorney’s Fees Affidavit will also estimate fees needed to take a case through to Trial.
The initial stage of the divorce case begins with the filing of the initial divorce documents. In most cases, the responding party is served with divorce papers. The person serving papers is either the Sheriff or a private process server. In either case, the person will file with the Court an Affidavit of Service of Process, or an Affidavit of Non-Service.
Affidavit of Service of Process
The Affidavit of Service of Process signals that the responding party has been brought into the lawsuit. If the respondent does not respond by filing an Answer within 20 days of being served, the petitioner can “default” the respondent, and ask the Court to grant whatever relief he or she wishes. However, the Clerk of the Court will not grant a default without seeing an Affidavit of Non-Service in the Court file.
If the respondent does file an answer, the Affidavit of Service of Process is used by the Court to calculate the due date for the answer and for initial mandatory disclosure.
In the vast majority of cases, the parties will request from each other the filling out of standard interrogatories.
Standard Interrogatories are Standardized Affidavits
“Standard” Interrogatories are boilerplate questions that are approved by the Florida Supreme Court for use in family law cases.
These questions are meant to supplement the information provided in the Financial Affidavit. That means it is important to be sure your answers are truthful and consistent with the your other financial disclosure.
The most time-consuming Standard Interrogatories are in questions four and five, and deal with assets and debts. A party can satisfy these questions by turning over certain documents. If these documents have already been provided or can be provided without substantially burdening the requesting party, it is better practice to provide the documentation in lieu of answering the additional questions.
An attorney also has the option of drafting 10 additional interrogatories and sending it to the other party to answer under oath. While Standard Interrogatories are boilerplate and limited to financial questions, additional interrogatories are custom and can be about anything relevant to the divorce.
Additional interrogatories are used by attorneys to:
- clarify vague allegations or pleadings by the opposing party,
- narrow the trial issues down,
- determine the location or existence of additional documentary evidence that has not yet been provided by opposing counsel,
- obtain admissions, and/or
- clarify an insufficient or evasive deposition or answer at a hearing.
It is best practice to “save” some interrogatories until after depositions are complete. After all, you only get one “bite at the apple” when it comes to deposing the other party.
The party answering the interrogatory should answer the question completely and fully. In our firm, the client drafts the answers to the standard questions, and our attorneys review for completeness. Additional questions, however, are reviewed by the divorce attorney before turning over to the client, as we can object to the question if it is harassing, vague, unduly burdensome, or requesting privileged information. If needed, we can make a Motion before the Court for a Protective Order to stop the other party from seeking answers to inappropriate questions.
Only one person can sign an Order: the Judge. The Judge is the law of the land in a divorce case. While the Judge will encourage the parties to work out their divorce issues among themselves via a settlement agreement, even then the Judge will review the agreement to make sure the law was followed and “ratify” the agreement with an Order.
The Judge Writes the Orders
Orders typically fall in the following categories:
- Form and Standing Orders: The Judge has “standing” Orders that apply in every Florida divorce case. For example, a Florida Judge will issue a standing Order that neither party shall conceal assets from another party, or use the children as a sword in the divorce.
- Orders Ratifying Agreements: With any luck, the parties will come to an agreement on some or all of the issues in the divorce. While a formality, the parties will then want to submit the agreement to the Judge to ratify and make the agreement an Order.
- Orders Granting or Denying Motions: Parties file Motions. The Judge needs to hear Motions and either grant or deny the Motion. This granting or denying of the Motion is boiled down to an Order.
- Final Orders: When everything is done, the Presiding Judge will issue a Final Judgment of Divorce, which spells out the end result of all the issues in the divorce. If children are involved, the Final Judgment will incorporate a parenting plan as well.
In most jurisdictions, the Judge has “standing” Orders that immediately apply to everyone who files divorce documents. These Orders spell out the initial rules of the game.
Sample Standing Order
Most Standing Orders address the same relatively common “problems” in a newly filed divorce case, including:
- Ordering Contact Between the Parents: The law states that children should have frequent and continuing contact with both parents after the divorce. The law expects that, absent unique circumstances, both parents will jointly make parenting decisions.
- Parenting Class Required: Most jurisdictions require parents to take a Court approved, four-hour parenting class.
- No Residential Relocation: Most Standing Orders confirm Florida law that relocating with a child more than 50 miles is not allowed without approval from the other party or the Court.
- Honesty With Records and Assets: Most jurisdictions make it clear that concealing or hiding assets or records is a big no-no.
- Prohibition on Incurring Additional Debt: Most jurisdictions prohibit incurring additional debt during a pending divorce unless it is debt needed to pay ordinary and reasonable living expenses.
Just like any other Order issued by the Judge, a Standing Order that is disobeyed is punishable if the offended party files a Motion for Contempt with the Court.
The final document or pleading in a Florida divorce case is the Final Judgment of Dissolution of Marriage, or “Final Judgment.” This is the Order from the Judge granting the divorce and solving the issues of parental responsibility, equitable distribution, alimony, child support, and attorney’s fees.
Final Judgment in a Florida Divorce Case
In a divorce case with a settlement, the Final Judgment is usually boilerplate. In it the Judge “finds” that the Court has jurisdiction, there are irreconcilable differences between the parties, and if applicable the Judge restores the wife’s maiden name.
The Judge must find that the settlement agreement was done freely and voluntarily, that fair disclosure was done, and that the parenting plan (if applicable) is in the best interests of the children.
The marital settlement agreement and parenting plan (if applicable) are incorporated into the Final Judgment.
A Final Judgment after a divorce trial is much more intensive. This is a Judgment drafted by the Judge that will articulate the Judge’s findings in the case. Often the Judge will have both attorneys draft their respective proposed Final Judgments after trial and submit to the Judge, who will pick one and work off of it to create his or her Final Judgment.
These Final Judgments are much longer than the settlement Final Judgment. Not only does the Judge have to make a decision as to every issue in the case, but the Judge must also explain “why” the Judge came to that decision. Final Judgments after trial are often between 15 and 30 pages, and can take weeks (or longer) to get back from the Judge.
When the dust has settled, and the Judge has issued the Final Judgment in the case, there still might be one more “cleanup” order to take place.
A Qualified Domestic Relations Order, or “QDRO,” is an Order from the Court that compels a retirement plan administrator to divide up a retirement plan.
For example, if a spouse has accumulated value in a 401K and the other spouse is entitled to a percentage of the account, a QDRO could be utilized to disburse the funds from the 401K to the other spouse.
The QDRO is a special Order that can save the paying spouse from any tax ramifications and early withdrawal fees. The receiving spouse also has the option of taking the funds in his or her own 401K, an IRA, or in cash.