STEPS OF A DIVORCE
Many clients have limited experience with the court system. A lawsuit can spark emotions ranging from anger to frustration. Knowing what stage your lawsuit is in will relieve anxieties about what happens next. It will also allow you with to plan your strategy and also provide you with a better understanding of the legal system. Here is basic guide to the steps of a divorce in Florida.
1. FILING THE CASE: A family law case begins with the filing of a Petition for Dissolution of Marriage (also known as the “Petition”). A petition is a written request to the court for some type of legal relief. The person who originally asks for the legal relief is called the “Petitioner” and remains the petitioner throughout the case. A Petition is filed with the clerk of the circuit court. A case number is assigned and an official court file is opened. A filling fee is usually required.
2. SERVICE OF PROCESS: When one party files a Petition, the other party must be “served” with a copy of the document. This means that the other party is given proper notice of the pending action(s) and any scheduled hearings. Personal service of the petition and summons upon the respondent by a deputy sheriff or a private process server is required in all original petitions. There are cases where the petition is served on your spouse’s attorney, if the attorney agrees to accept service of process on the client’s behalf.
3. RESPONSIVE PLEADING: After being served with a petition, the other party (called the “Respondent”) has 20 calendar days to file an Answer which admits or denies each of the allegations contained in the petition. If a response to the petition is not filed, the petitioner may file a motion for default with the clerk. This means you may proceed with your case. If you are served with a lawsuit you must be sure to timely file your Answer, or file a written request for additional time to file your Answer from the court before the time has elapsed. Any time you file a document with the court you must also provide a copy of the document to your spouse’s attorney (if your spouse does not have an attorney, you must provide your spouse with a copy via U.S. Mail).
4. MANDATORY DISCLOSURE:Florida Law requires each party to exchange certain information and documents, and file a financial affidavit under Florida Family Law Rule of Procedure 12.285. Failure to make this required disclosure within the time required may allow the Court to dismiss the case or refuse to consider the financials or pleadings of the party failing to comply.
5. DISCOVERY: Refers to the formal procedures used by parties to exchange and obtain information from each other and from witnesses. The information is meant to help the party to prepare for trial or settle the case. The primary discovery methods are: depositions, interrogatories, requests for production of documents, request for inspections, subpoenas, and request for psychological evaluations. All of these procedures have distinct timelines that must be adhered to. It is important to keep track of these deadlines so that you are not in violation of any rules.
6. SETTLEMENT: Usually settlement discussions begin after the value of the marital estate has been determined. However, there are cases in which clients already have an idea of the terms they are willing to accept before all assets and liabilities have been accounted for. In the event a settlement is reached, an agreement is prepared that outlines the settlement terms. If a settlement is not reached, then the case will proceed to mediation.
7. MEDIATION: Family Mediation is a procedure designed to assist people who are separating, divorcing, or dealing with matters arising after a divorce. A neutral and impartial third party, called a mediator, will use his or her skills to assist the individuals to make decisions, and suggest possible compromises.
Each party is urged to have his/her own, independent legal counsel at mediation because although some mediators are attorneys, the mediator is not authorized to give legal advice. The mediator’s role is neutral, and does not substitute for independent legal advice. Mediation is binding if you sign the Mediation Agreement. Many times people do not understand this and find out later that they did not make a good agreement on their own behalf, or could have gotten a better agreement if they had consulted with a Family Law attorney prior to entering into an agreement.
8. FINAL HEARING: If you settle your case prior to trial, the Petitioner attends a final hearing and the judge enters a final judgment. This document is the court order which dissolves your marriage and outlines the particulars of your divorce, such as child support, distribution of assets and liabilities, and alimony. It is a good idea to get several certified copies of this document if you have real property such as a home, or if you need to transfer assets or remove your spouse’s name from assets, insurance policies, etc. Once the case is over, this document goes into long-term storage. It could take up to a week if you must get a certified copy of this document for any legal purpose, so it is a good idea to keep it handy and to have it certified. Also make sure that if there are exhibits attached to the final judgment that they are attached to the certified copies of your final judgment.
9. TRIAL: If the case is not settled by discovery and/or mediation, you will eventually find yourself at a trial. In a trial, a judge makes all the legal decisions, such as whether or not a particular item of evidence can be used. At the same time the judge makes all the factual decisions.
At the trial, you will be required to present your case according to very specific rules of procedure and evidence. If the parties choose to proceed to a trial, they need to be prepared to realistically accept the consequences of putting their and their child(ren)’s lives, and their future, in the court’s hands, as they will give control to a complete stranger to decide their personal and financial fate, as well as the fate of their children.
At trial, the Judge will issue a Final Judgment. This document is the court order which dissolves your marriage and outlines the particulars of your divorce, such as child support, distribution of assets and liabilities, and alimony. It is a good idea to get several certified copies of this document if you have real property such as a home, or if you need to transfer assets or remove your spouse’s name from assets, insurance policies, etc. Once the case is over, this document goes into long-term storage. It could take up to a week if you must get a certified copy of this document for any legal purpose, so it is a good idea to keep it handy and to have it certified. Also make sure that if there are exhibits attached to the final judgment that they are attached to the certified copies of your final judgment.