PLEADINGS AND DISCOVERY
PLEADINGS AND DISCOVERYWendy L. Robbins, Esq.21ST Annual Nuts and Bolts of DivorceFebruary 13, 2013
WHERE TO START?
FLORIDA SUPREME COURT FORMS
FRIENDS (dont forget Battle of the Legal Bands 03/10/13!)
For the purposes of this PowerPoint, the term children refers to dependent or minor children only, including situations when the wife is pregnant at the time of the dissolution.
Any references to form numbers refer to the Family Law Forms found at the Florida State Courts website at http://www.flcourts.org/gen_public/family/forms_rules/index.shtml.Which type of Dissolution of Marriage Action is Necessary?
Simplified dissolutions are used whenThe parties agree that the marriage cannot be saved.The parties have no dependent or minor children and the wife is not pregnant.The parties have agreed on the terms of the divorce (ex. division of marital assets and liabilities).Neither party is seeking alimony.
For more information on when to use a simplified dissolution, see Form 12.901(a) at the Florida State Courts website. Filing for Dissolution-PetitionFor all other types, use a Regular Petition for Dissolution.
There are three types:Form 12.901(b)(1) - Dissolution with Children and PropertyForm 12.901(b)(2) - Dissolution with Property but No Children
Form 12.901(b)(3) - Dissolution with No Children or PropertyEx. the parties may not agree on the terms or the necessity of a dissolution. Filing for Dissolution-Petition Filing for Dissolution-PetitionJurisdiction
Fla. Stat. 61.021: One of the parties to the divorce must reside in Fla. for at least 6 months before the filing of the petition for dissolution.
The resident party does not have to be the spouse requesting the dissolution.
Residence = actual presence + intent to remain (Marshall v. Marshall, 988 So.2d 644 (Fla. 4th DCA 2008)).10 Filing for Dissolution-PetitionJurisdiction continued
The residency requirement may be demonstrated in two ways:
By providing a copy of a current Fla. drivers license, Fla. identification card, or voters registration card.
By an Affidavit of Corroborating Witness Form 12.902(i), which is signed by someone other than either spouse, verifying that the residency requirement is met.
For more information on the residency requirement, see Family Law Form 12.902(i).11 Filing for Dissolution-PetitionVenue (Chapter 47, Florida Statutes)
In dissolution cases, venue is proper in the Florida county where the marriage last existed.
i.e. the county where both partners were last present with a common intention to remain married (Carroll v. Carroll, 322 So.2d 53, 57 (Fla. 1st DCA 1975), approved by 341 So.2d 771).12 Filing for Dissolution-PetitionVenue continued
If the petitioning spouse is a non-resident of Florida, venue is proper in the county where the respondent (resident spouse) resides. Bolles v. Bolles, 364 So.2d 813 (Fla. 3d DCA 1978).
However, if the respondent is a non-resident, proceedings can be brought in any Florida county. Evans v. Evans, 194 So. 215 (Fla. 1940).
See also Lucille M. Espey-Francis, Jurisdiction, Venue, and Service of Process, Fla. Dissolution of Marriage 3.48-3.49 (2010).13 Filing for Dissolution-PetitionService of Process
Personal Service: Forms 12.910(a) and (b)
Constructive Service: Forms 12.913(a) and(b)
Military Service may require additional steps. See, e.g., the Memorandum for Certificate of Military Service, Form 12.912(a).14You will also need to file
Family Court Cover Sheet Form 12.928Must be filed with the first pleading or motion to open or reopen any domestic or juvenile case.See Fla. Fam. L.R.P. 12.100(a).
Notice of Social Security Number Form 12.902(j)Must be filed by both parties in any paternity, child support, or dissolution of marriage case.See Fla. Stat. 61.052(7). Filing for Dissolution-cont.15Certificate of Compliance with Mandatory Disclosure Form 12.932Fla. Fam. L.R.P. 12.285(a) requires the exchange of particular documents and financial information (i.e. mandatory disclosures) in certain family law cases, including a dissolution with children and property.
Each party must file this certificate with the court to verify that the documents have been exchanged.
Filing for Dissolution-cont.16Certificate of Compliance with Mandatory Disclosure Form 12.932 continuedThis form must be filed with the petition OR within 45 days of service of the petition on the respondent, unless the parties have agreed to waive mandatory disclosure.
Objections to mandatory disclosure must be filed with a Notice of Hearing on the objection and served on the other party. Fla. Fam. L.R.P. 12.285(h).
See Form 12.932 for details on what type of information must be disclosed. Filing for Dissolution-cont.17Family Law Financial Affidavit Form 12.902(b) or (c)Must be filed with the court and served on the other party in any proceeding seeking financial relief. Fla. Fam. L.R.P. 12.285(c)(1) and (d)(1).
Must be filed with the petition if petitioner is seeking child support. If not, it can be filed within 45 days of service of the petition on the respondent.
Use Form 12.902(b) if your clients individual gross income is under $50,000 per year. Use Form 12.902(c) if it is $50,000 or more per year. Filing for Dissolution-cont.18Child Support Guidelines Worksheet Form 12.902(e)
Must be completed if a party is requesting child support. Fam. L.R.P. 12.285(j).
If the spouses income is unknown, this form may be filed after receipt of the spouses financial affidavit, but it must be filed at or before any hearing on child support. Filing for Dissolution-cont.19UCCJEA Affidavit Form 12.902(d)
The purpose of the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) is, inter alia, to [a]void jurisdictional competition and conflict with courts of other states in matters of child custody which have in the past resulted in the shifting of children from state to state with harmful effects on their well-being. (Fla. Stat. 61.502)
This form must be filed in any case involving custody, visitation, or time sharing with minor children, even if such elements are not part of the current dispute.Make this form a separate document (as it was intended) you might need to use it as an exhibit. Filing for Dissolution-cont.20 Filing for Dissolution-OtherIf the client is indigent, do not forget to complete an Application for Determination of Civil Indigent Status, which can be obtained from the clerk or on the Florida State Courts website. FYI, MOST legal aid and PSB clients will qualify.
If the case involves domestic violence, you can file a Request for Confidential Filing of Address, Form 12.980(h), to keep your clients address confidential for safety purposes.21 Filing for Dissolution-OtherFla. Fam. L.R.P. 12.040(a) states that an attorney of record for a party, in a family law matter governed by these rules, shall be the attorney of record throughout the same family law matter Notice of Limited Appearance: If you and your client wish to limit the scope of your representation to particular issues or proceedings within the case, see Forms 12.900(b)-(g).
If there is another pending case involving the same parties or issues, file a Notice of Related Cases, Form 12.900(h).Ex. where one spouse already initiated a child support proceeding, or if there is a Domestic Violence case involving the parties.22The terms custody, visitation, primary/secondary parent and custodial/non-custodial parent, were eliminated from Floridas statutory scheme in 2008.
The new terms in this area are shared/sole parental responsibility and time-sharing. See Fla. Stat. 61.046(17) and (23) for definitions.
Now, under Fla. Stat. 61.13(2), Florida courts must create a parenting plan detailing how the parents will share responsibility for the daily activities associated with raising a child AND the time sharing schedule the parents will follow.PARENTINGPLAN Filing for Dissolution-23See Fla. Stat. 61.046(14) for a detailed definition of parenting plan and what must be including in the plan.
If parents agree on a parenting plan, use Form 12.995(a) to submit this plan to the court for approval. If not approved, the court will create a plan.
If the parents cannot agree on a plan, each parent may still submit proposed parenting plans for the courts consideration using Form 12.995(a).
NOTE: Form 12.995(b) is for supervised time-sharing.PARENTINGPLAN Filing for Dissolution-24The court may award sole responsibility to one parent, instead of shared responsibility between parents, but ONLY if it is in the best interest of the child. Fla. Stat. 61.13(2)(c)(2)(b) and 61.13 (3).
Even with shared responsibility, the court still may divide the actual responsibilities between the parents based on the best interest of the child. Fla. Stat. 61.13(2)(c)(2)(a).
To determine the childs best interests, the court must consider the factors listed at Fla. Stat. 61.13(3).PARENTINGPLAN Filing for Dissolution-25FILING AN ANSWER/RESPONSE TO A PETITION FOR DISSOLUTIONPrepare your clients answer to the Petition for Dissolution of Marriage. ANDALWAYS PREPARE A COUNTER-PETITION FOR YOUR CLIENT.A counter-petition and affirmative defenses are not the same. A Petition and a Counter-Petition are the same thing, just the titles for your client and the other party differ.Fla. Stat. 61.21(4) requires that parties to a dissolution with children complete a Parent Education and Family Stabilization course prior to the entry of the final judgment.
Fla. Stat. 61.21(5) adds that the petitioning spouse must complete the course within 45 days after filing the petition, and the respondent spouse must complete it within 45 days after service of the petition.Parenting CourseThe court may excuse parties from completing the course if good cause can be shown. Fla. Stat. 61.21(4).
The court may also prohibit the course from being taken by both parties at the same time, if there has been a history of domestic violence. Fla. Stat. 61.21(11).
The listing of approved course providers is maintained by the Fla. Dept of Children and Families at http://www.myfloridafamilies.com/ OR directly at http://www.myfloridafamilies.com/docs/ParentEducationFamilyStabilizationCourseProvidersList.pdf.Parenting Course-continuedA reasonable fee may be charged to each parent attending the course. Fla. Stat. 61.21(7). However, this fee differs among course providers. Generally the fee is between $20-50.
Please see the DCF links on the previous slide for information on waiving the fees for indigent clients, as this practice differs among course providers.
Additionally, please see the circuit court links within this PowerPoint OR contact the clerk, family law intake staff, or judicial assistant in your jurisdiction for more information. Parenting Course-continuedMandatory disclosure under Fla. Fam. L.R.P. 12.285 starts the discovery process.
But you can also use interrogatories.File a Notice of Service of Standard Family Law Interrogatories, Form 12.930(a) with the circuit court clerk.
Send the above notice AND one of the following Family Law Interrogatory forms to the other party:Original and Enforcement Proceedings Form 12.930(b)Modification Proceedings Form 12.930(c)
You can include up to 10 additional interrogatories without leave of Court (Fla. Fam. L.R.P. 12.340(b)). DiscoveryConsider other forms of discovery
Request for production see Fla. R. Civ. P. 1.350
Request for admissions see Fla. R. Civ. P. 1.370
Depositions see Fla. Fam. L.R.P. 12.290-12.330
Keep in mind that court approval is required before a minor child can be involved in certain aspects of the proceedings. See Fla. Fam. L.R.P. 12.407. Discovery-continuedOther ConsiderationsSee Florida State Courts website for information onSpecial Considerations for Military PersonnelUnique situations (e.g., deployment, military benefits)Military regulationsFederal statutes Florida statutesRelocationContempt/EnforcementSupport unconnected with dissolution of marriageE-FILING -INFORMATION ABOUT EFILING AND REGISTERING CAN BE FOUND AT www.miami-dadeclerk.com
INFORMATION ABOUT E-FILING
YOU MUST REGISTER FOR E-FILING