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Typical Procedure in a Family Law Case
1. Meet with Your Family Lawyer to Develop a Personalized Strategy
The first and one of the most important steps is the initial meeting with your family lawyer. You should be prepared to discuss your case in detail including your family members, your finances, assets and liabilities, your current living situation, and of course, your desired outcome for yourself and your family. It is critical to prepare for this meeting by writing down any questions you might have and talking to your lawyer about any documents or information you should gather beforehand so you can review them during the meeting.
Table of Contents
- Meet with Your Family Lawyer to Develop a Strategy (see above)
- Prepare & File Appropriate Petition
- Prepare & Serve Mandatory Disclosure Financial Documents
- File Motion for Temporary Relief
- The Discovery Process in Divorce & Family Cases
- Post-Final Judgment Proceedings
2. Prepare the Petition
The document that is filed with the court to start any family law case is called the petition. Typical petitions include a petition for dissolution of marriage and a petition to establish paternity or a petition seeking to relocate. Even if your family law matter is uncontested a formal petition must be filed.
A. Establish Jurisdiction of the Court
Under Florida law, one or more of the parties to a family law case must have continuously lived in Florida for at least six months before the date the petition is filed. This requirement establishes the court’s jurisdiction over the subject matter. If you have not lived in Florida for at least six months, it is premature to file a petition.
Once the petition is filed with the court and served on the other party along with the supporting documents discussed below, the court has jurisdiction over the parties and over the subject matter of the case.
Along with the Petition, there are other supporting documents that have to be filed at the same time:
B. Prepare Uniform Child Custody Jurisdiction Enforcement Act Affidavit
If there are minor children involved, then the parties must file an affidavit under the Uniform Child Custody Jurisdiction Enforcement Act (UCCJEA). Like an adult party, a child must have lived in Florida for at least six months before the date the petition is filed. The UCCJEA Affidavit requires the parent to list each child along with their identifying information and each address where the child has lived over the past five years. The UCCJEA is the document that gives the court jurisdiction.
C. Prepare Notice of Social Security Number
Each party must file a notice of social security number with the court. The court uses this information in child support matters and in a collection of other forms of support like alimony. If there are children, then they should also be listed on the form along with their information.
D. Prepare Notice of Related Cases
The Notice of Related Cases lists all other cases that involve the same parties. Divorce and family law cases often involve other past or pending cases that relate to the current case. For example, there could be a pending Department of Revenue action for child support filed before or during a divorce case. Other examples of related cases include domestic violence, criminal charges, or dependency actions filed by the state. All of these related cases must be listed and identified so the presiding judge can see the landscape so to speak and decide whether or not to join certain related actions together to improve court efficiency.
E. Prepare the Summons
The summons is the official document signed by the clerk of the court that notifies the other party that you have filed a lawsuit against them. The other party receives the summons, petition, and supporting documents by personal service. That means a deputy sheriff or other process server personally hands the other spouse or parent the documents and informs them as to the contents.
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3. Prepare Mandatory Financial Disclosure Documents
All divorce and family law cases involve the parties’ finances to some extent. The court system recognizes this fact and there are rules that require “Mandatory Disclosure,” which means that both parties to a divorce or family law matter must automatically copy and provide to the other side certain financial information. These documents are required to be produced to the other side within forty-five days of the date that the summons and supporting documents are served. The rule is self-executing so that each side has to automatically produce the documents whether or not the other side actually requested them.
A. Mandatory Disclosure Requirements Include but are not Limited to the Following:
a. financial affidavit must be notarized. The financial affidavit is a snapshot of your income and expenses on a monthly basis. It also lists your assets and liabilities.
b. All personal IRS income tax returns for the last three years;
c. All corporate, partnership, or trust tax returns for the last three years;
d. All IRS forms W-2, 1099 and K-1 for the current year;
e. Pay stubs or other evidence of income earned for the past three months;
f. A statement identifying other sources of income from self-employment, investments, etc.
g. All checking account statements for the past three months;
h. All savings account statements for the past twelve months;
i. The most recent statement for any IRA, 401k, or retirement plan; and
j. All loan applications from the last twelve months.
4. File Motions for Temporary Relief
Temporary orders may be entered early in the case before a final judgment is entered. For many people, filing for divorce can leave them and their kids in a vulnerable position. Your attorney can file a motion for temporary relief requesting temporary alimony, child support, child custody, timesharing, or attorney’s fees on a temporary basis, meaning during the pendency of the case.
5. Discovery in Divorce and Family Law Cases
The term “discovery” refers to the various methods that attorneys can use to find out the facts and information that the other party has in their possession. In addition to mandatory disclosure, your attorney can also ask written questions of the other side, request additional documents, and even take the other party’s deposition.
A. Interrogatories or Written Questions
Interrogatories are optional. They allow your attorney to ask the other party written questions. The Supreme Court of Florida issues certain form interrogatories that are required to be used if interrogatories are served, but additional interrogatories may be customized to fit your case.
B. Request for Production of Documents
These are written requests for documents. Although most of the relevant documents are required to be produced in mandatory disclosure, your attorney can also file an additional request for the production of documents to get information that may not have been provided in mandatory disclosure. If one spouse owns a business, for example, a request for production could target relevant financial documents that the business would have.
C. Subpoenas for Documents
Subpoenas may be issued to non-parties to obtain documents that they have in their possession that relates to your case. Subpoenas will typically be issued to the spouse’s employer, 401k account holder, or other business entities that may have relevant documents.
D. Discovery Depositions
A deposition is a proceeding where the lawyer asks the person oral questions that are taken down by a court reporter. It is held outside of the courtroom and the judge does not attend the deposition. Depositions are one of the most effective methods of discovery in divorce and family law cases.
Once discovery is complete, and before the case is set for trial, the parties are required to attend mediation, which is an informal settlement conference. Mediation is confidential. No one is allowed to talk about it afterward. During the mediation, each side will attend with their attorney. Mediations today are largely held virtually, so you can attend mediation from home or other convenient locations. The mediator is typically an attorney who is retained to act as a neutral facilitator. The mediator is not supposed to “take sides” they are supposed to work and make a settlement possible. If an agreement is reached it is written down and signed by the parties, whether it is a partial settlement or a full settlement. If the case does not settle then it is set for trial.
Trial is where you and your attorney will present your case to the judge for a decision. Trials are held virtually these days as well so it’s important to prepare accordingly. Evidence is presented at trial through the testimony of witnesses and the submission of evidence. At the conclusion of the trial, the judge may issue an oral ruling from the bench or take the matter under advisement to issue a written final judgment that will lay out the details of the matters decided. The written final judgment will contain a parenting plan and distribution of assets and liabilities and will be the law of the case unless it is appealed or modified.
8. Post-Final Judgment Proceedings
If one party is not satisfied with the final judgment and believes there are errors in it, then they may file a notice of appeal. The appeal case will then be heard by the appropriate district court of appeal, which in the Orlando area is the Fifth District Court of Appeal in Daytona Beach, Florida.
B. Modification of Judgments
We all know that things change over time. If things change in a substantial and unexpected manner, then one party to the final judgment can seek to modify the final judgment to fit the parties’ current circumstances. For example, if the father does not follow the timesharing plan and does not follow the communication plan then the mother can request the court to modify the timesharing plan to fit the parties’ current situation.
C. Motion for Contempt of Court
If one party will not follow the terms of the final judgment then the other party can file a motion for contempt, which seeks to have the court enforce its own order when one party fails to follow it. For example, if the mother refuses to pay child support ordered by the court, or refuses to pay the father for the children’s medical bills, she can be held in contempt and the court can enter sanctions and award attorney’s fees as a result.
Consult With An Experienced Family Law Lawyer
If you have any questions about your divorce or family law matter in Orlando or Central Florida then check out our Frequently Asked Questions section and you can always call The Spence Law Firm for a free consultation.
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