Divorce Proceedings In Florida

Divorce proceedings in Florida are a legal process. The state legislature is responsible for passing statutes that govern the divorce process. Divorce proceedings are governed by Florida Statutes Chapter 61. The body of law in Florida is a combination of the statutes and how the statutes are interpreted. The interpretations of the statutes are the individual cases that have been appealed and reported. Together the statutes and cases form the body of law that governs all divorces.

In Florida, divorce proceedings may only be initiated when at least one of the parties has resided in Florida for the last six months. If only one of the parties lives in the state, it’s still possible to obtain a divorce in Florida. However, there may be questions of jurisdiction concerning whether Florida law or the law of another state should apply.

Overview Of The Divorce Process

To start divorce proceedings, one party will file a petition for divorce with the grounds for divorce, usually asserting that the matrimonial bonds are irretrievably broken. The legal petition includes what the party seeking divorce would like the court to grant them regarding child custody, child support, property division, and alimony.

The responding party will answer and either agree with the party seeking the divorce on specific pleadings or deny the pleadings and file a counter-petition. At this stage, the parties may agree on certain temporary matters. If they can’t agree, the court may make specific temporary orders concerning child support, visitation, financial support, housing, or other issues during the pendency of the proceeding.

After the initial pleadings, the parties enter the discovery phase. During the discovery phase, the parties share information regarding their petition. This information includes financials, employment, property, medical, and child-rearing plans. Discovery requires several forms, including the following.

Initially, the parties exchange information and pleadings. All divorce cases require the parties to attend court-ordered mediation before trial. Mediation proceedings are confidential and take place with the parties, their divorce attorneys, and a mediator. Mediation allows the parties to agree concerning pending issues in their matter without the court. The parties can agree on all or some of the issues and come to either a full settlement or a partial settlement to narrow the issues for trial. If the parties come to a full settlement, it is memorialized in a marital settlement agreement which will record the parties’ agreement on child custody, child support, equitable distribution, and alimony.

If an agreement is reached at mediation, the Marital Settlement Agreement will be incorporated into the Final Judgment of Divorce. If an agreement is not reached, the mediator will only report to the court that an impasse has been reached.

If mediation is unsuccessful, the parties will proceed to a dissolution of marriage trial with a Circuit Court Judge in Florida. There is no jury trial in a dissolution of marriage proceedings in Florida. Instead, the judge will decide on all areas that the parties have not already agreed upon and include those findings in the Judgment of Dissolution of Marriage.

After the judgment has been entered, the parties will be divorced, and the Final Judgment will now govern their actions post-divorce. As a result, parties often have to return to court to seek either enforcement of the final judgment or modification if the circumstances warrant a modification.

Filing & Answering A Florida Divorce Complaint

The divorce process starts with filing a Petition for Dissolution of Marriage by one of the parties. To file a petition for Dissolution of Marriage in Florida, you must be a legal resident for the last six months and file in either the county you or your spouse resides.

The divorce petition sets forth when the parties were married, where they live, what property they own, what children were born, and must state the marriage is irretrievably broken. The complaint or petition sets forth what the petitioner asks the court to grant each party in the divorce.

The petition is usually filed in the circuit court where the petitioner resides. The petition, along with a cover sheet, summons, and copy of the county’s standing family law order, is all served on the respondent, either by the Sheriff or by a Private Process Server. Our family law attorneys coordinate with our clients the best time to serve their spouse’s Complaint/Petition for Dissolution of Marriage. Additionally, we coordinate acceptance of service with our client’s spouse or attorney to avoid unnecessary involvement in the spouses’ employment.

Spouse’s Answer

After the complaint is served, the party has twenty (20) days to file a response to the Complaint. The averments, or statements in the complaint, must be either admitted or denied by the party responding to the complaint. In most contested divorces, the party responding to the complaint will file their counter-petition, setting forth what they are seeking from the court in the very same key areas; child custody/time-sharing, child support, alimony, and property settlement.

Initial Negotiations

In many cases, the parties and the attorneys will come to some initial or temporary agreements regarding visitation, housing, support, and other temporary matters and will not be binding on the court in a final judgment hearing. If the parties cannot agree, generally, they will motion the Court to make an initial ruling on such matters, including temporary support and child custody. Parties should take great caution in what they agree to temporarily in divorce proceedings, as matters agreed to temporarily may end up being final.

Your Divorce Is Confidential

Parties should understand that divorce/dissolution of marriage proceedings are confidential in Florida. Unlike other civil matters, pleadings in a dissolution of marriage case are only visible to the attorneys and the parties to the cases and are not available to the public. Non-parties cannot obtain copies of the pleadings in a divorce case.

Discovery

After the initial complaint and answer are filed, the process of discovery in the case begins. This process allows both parties to lay out on the table all the information so they can agree. This information includes but is not limited to the parties’ income, assets, and liabilities. This step allows the parties to reach a fair and equitable agreement when all information has been provided.

Discovery Process In Florida Divorce Cases

After the initial pleadings are filed in a divorce case, the next step of the legal process is the discovery phase. Discovery is the formal exchange of information between the parties designed to put both parties on even footing regarding the information. Discovery is important because you learn about the evidence that both you and your spouse will or can use to present evidence at trial or mediation to support your pleadings and position in the lawsuit.

Discovery is often contentious, as parties often try to avoid producing discovery as they are aware it will weaken their case, or their spouse will learn the information they otherwise have no idea about. Discovery becomes even more important if the information that is typically the target of discovery, such as income, expenses, assets, expenditures, are often known only to one of the parties. In these cases, the spouse without the information must have a skilled attorney who can evaluate information and discern when information is missing or has not been provided. For more information on discovery in an uncontested divorce, click here.

In complex divorce cases, the discovery process can be lengthy, especially when the parties own multiple businesses, have significant assets or real estate, or complicated businesses where it can be difficult to determine the net worth and earnings capacity of a party or the valuation of a business. Your attorney should be experienced at valuating and auditing S corporations, partnerships, limited liability companies, trust, C Corporations, and Sole Proprietorships. Although cases where both spouses worked for companies and reported income on W-2 IRS forms are more straightforward and do not require as much skill or discovery, understanding the nuances, tax implications, and complexities of business owners and investors requires more skill and experience. If your divorce involves these complexities, make certain you retain an experienced divorce lawyer with Vazquez & Stockmar, PLLC.

Types Of Discovery In Florida

  1. Requests For Production Of Documents – Request for copies of documents relevant to the divorce proceedings, such as pay stubs and tax returns.
  2. Interrogatories – Written questions to the opposing party.
  3. Requests For Admissions – Statements that the opposing party must admit or deny.
  4. Depositions – Depositions are oral examinations before a court reporter where a party must answer questions under oath.
  5. Examinations – Physical examinations, such as an appraisal of a property.
  6. Discovery Objections – In divorce cases, there are often disagreements between the attorneys or parties over what information is discoverable or should be produced. A party may file objections to producing specific information and state their reasons for not producing the information.

The party seeking the information must make a good faith effort to work out the dispute with the opposing party if they are unrepresented or with their spouse’s counsel. If the parties or attorneys cannot resolve the issue, the requesting party will file a Motion to Compel Production, or Motion to Compel Appearance for Deposition, or Motion for Production from Non-Party, or other similar motion setting forth the party’s basis for the request and that it has not been satisfied. The opposing side will typically file a Motion in Opposition to the Request, and the court will hold a hearing to determine whether or not the party must comply with the Request.

Parties will use discovery and objections to wear down the opposing party’s case. It can be expensive and frustrating when a party continually has to go to court to compel production. The family law attorneys at Vazquez & Stockmar, PLLC are experienced at cutting through the noise and zeroing in on the key information. We pride ourselves on being organized and direct with our clients and opposing parties throughout the discovery process, so it is not as stressful of a process for our clients. In addition, we are efficient in obtaining all relevant documentation.

Filing An Uncontested Divorce In Florida

An uncontested divorce is one in which the parties have come to an agreement amongst themselves on the key provisions of the Divorce and are asking for a Simplified Dissolution of Marriage proceeding. Parties usually forgo the discovery process and will not exchange financials, speeding up the divorce process.

Uncontested Divorce filings work best when there are no children, no common assets, and no common debts between the parties and the parties are not seeking any property or money from one another.

Uncontested divorces are filed by attorneys or by the parties themselves. If you meet the following criteria, you can file for an uncontested divorce.

  • Both parties agree that the marriage is irretrievably broken
  • Neither party is seeking alimony from the other
  • Both parties agree on the division of the marital assets
  • Both parties agree on the division of the marital debts
  • Both parties agree on what debts and assets are nonmarital
  • Both parties are seeking a simplified dissolution of marriage
  • There are no children under the age of 18, including adopted children
  • The wife is not currently pregnant

Typically one party will file the petition, with a copy of a marital settlement agreement attached, and the responding party will file an answer agreeing with the petition or file an answer and waiver, waiving any further notice from the court regarding the proceedings and asking for a final judgment.

Discovery In An Uncontested Divorce

Parties are still bound by the Florida Family Law mandatory discovery, which includes two years of tax returns, six months of pay stubs, 12 months of bank statements, deeds, and promissory notes owned in the last year, brokerage accounts for the last 12 months, and a Financial Affidavit. Parties can agree to waive the exchange of documents but must fill out an accurate and complete Financial Affidavit. A party that files an incomplete or inaccurate financial affidavit is subject to having their marital settlement agreement or final judgment revoked or modified by the court retaining jurisdiction.

While, many couples might qualify for a simplified and uncontested dissolution of marriage, it would often be best to contact a family law attorney. Even in simplified dissolution cases minor errors can cause the entire settlement to be nullified later or modified by a Judge.

Lawyers in Longwood, Florida, are happy to provide a free consultation even if you believe you will be filing your own simplified dissolution of marriage. Often, a party will discover that the agreement their spouse is suggesting is not fair. In many cases, we have prepared simplified dissolution of marriage cases for a flat fee where we represent one party to ensure that the process is followed correctly and that our clients receive a fair settlement.

Mandatory Disclosures In Florida Divorce Cases

The Florida Supreme Court has dictated that specific information/documentation must be provided to the other party, called Mandatory Disclosures. These disclosures are typically supplemented by additional requests but must be complied with or waived by the parties’ agreement. A waiver of mandatory disclosures is typically done in uncontested divorces with no children and fewer assets to divide among the parties. The minimum mandatory disclosures include what is listed below.

The parties must fill out a Financial Affidavit, the Florida Family Law Rules of Procedure Form 12.902 (b), the Florida Short Form Financial Affidavit, this form can only be used if the Party’s gross annual income is $50,000 or less. For Parties having Gross Annual Income over $50,000, the Florida Family Law Rules Form 12.902(c) is used, the Florida Long Form Financial Affidavit.

The filing of a Florida Financial Affidavit may not be waived, as it is required in ALL CASES. The form must be filled out accurately and honestly, and the party filling out the affidavit must sign the affidavit in front of a notary. The affidavit is then filed with the court. The purpose of the Affidavit is to require the honest and complete disclosure of each parties’ financial position, even if no documents are going to be requested or examined.

If a party lies or omits significant information on the affidavit, the other party, upon discovery of such omissions, may motion to the court to modify, revoke or amend the parties’ Marital Settlement Agreement or Final Judgment of Dissolution of Marriage Order. A party that lies or deceives the other on the Financial Affidavit is subject to having their Marital Settlement Agreement thrown out or amended and will often face sanctions, including paying the attorney’s fees of the other party.

The financial affidavit is a comprehensive picture of all forms of income, your allowable deductions, monthly expenses, and a snapshot of your assets and liabilities. Courts use this information in awarding alimony and determining equitable property distributions. Information required in the Florida family law affidavit includes:

  • Age, occupation, employer contact information, and salary for each job held
  • Gross Income from the previous year.
  • Monthly gross income From the current year, including salary, bonuses, wages, business income, and other benefits such as disability, social security, alimony, pension, dividends, rental income, and reimbursed expenses. To arrive at the party’s net income, monthly deductions from income are a detailed disclosure of certain deductions from income.
  • Deductions, including taxes, dependents, retirement payments, union dues, health insurance, court-ordered alimony, and child support. The monthly deductions are subtracted from the monthly income to determine the parties’ net monthly income. After determining the net monthly income, the parties deduct all of their monthly living expenses of every kind to determine if the party has a surplus or deficit every month.

In addition, the parties must list their assets & liabilities, what they own, and what they owe, and whether the assets and liabilities are marital or nonmarital. A party claiming an asset is non-marital is claiming that the party solely owns that asset and it should be excluded from any property or equitable distributions. Marital assets and nonmarital assets are outlined below.

  • Marital Assets
    • Assets acquired by either or both spouses during the marriage, other than through gift, bequest, or descent.
    • Appreciation in value of non-marital assets from the contribution of marital funds or the efforts of the other spouse
    • Interspousal gifts
    • Benefits accrued during the marriage in retirement plans, pension plans, profit sharing, etc.
    • Earnings and wages
  • Nonmarital Assets
    • Assets acquired before the marriage
    • Assets acquired by non-interspousal gift, bequest, descent, or devise.
    • Anything agreed to by the parties to be non-martial
    • Income derived by non-marital assets

Required Minimum Disclosures

The required minimum disclosures are waivable by the parties, but this only typically occurs in Uncontested Divorces. The minimum disclosures required are as follows.

  • The Financial Affidavit
  • All federal and state income tax returns filed in the last year
  • W-2. 1099’s and K-1’s for the last year
  • Pay stubs for the previous three months
  • All loan applications or financial statements prepared in the last year
  • All deeds and leases for the last three years, including joint and trust accounts
  • All statements for the last three months for all checking accounts and twelve months for all other accounts such as savings or money market accounts
  • All brokerage accounts for the previous twelve months
  • The most recent statements from any pension or profit-sharing or retirement plan
  • Life insurance policies
  • Corporate, partnership, and trust tax returns for three years
  • All promissory notes for the last twelve months and credit card statements for the last three months
  • Any pre-nuptial or post-nuptial agreements

In many cases, preparing the information can be daunting, particularly for parties that do not have a financial background or those that have not been in charge of finances during their marriage. The attorneys at Vazquez & Stockmar, PLLC are experienced at navigating and assisting parties in preparing their documents accurately and are particularly adept at evaluating documentation received from the opposing party.

Interrogatories In Divorce Cases

Interrogatories in divorce cases are questions that must be answered in writing by the receiving party and sworn to. The requesting party prepares the questions and asks the opposing side about their finances, background info, education, employment, assets and liabilities, and other miscellaneous information that may be relevant to your case. Answers to interrogatories can be used as evidence at trial and to understand the other party’s position in the case. In addition, the information gleaned from interrogatories helps the parties to understand the factual basis of a party’s position to help the parties make informed decisions in the case.

The Florida Supreme Court has approved standard family law interrogatories to supplement the Family Law Financial Affidavit. These Interrogatories are comprehensive and cover most standard information needed in divorce cases. You can find the standard family law interrogatories online. As a general rule, interrogatories must be answered within 30 days after service and be sworn before a notary.

Please note, in your divorce case, you will likely ask for or be asked Interrogatories that are more tailored to your situation, in addition to the standard inquiries that are covered.

Vazquez & Stockmar, PLLC guides its clients through the discovery process to provide accurate information, which best presents the client’s position in answering interrogatories and tailors its discovery requests towards information useful in reaching our client’s goals. In addition, our attorneys are experienced at curtailing abusive discovery that is only geared towards harassment and needlessly increasing litigation costs.

Requests For Production Of Documents In Florida Divorce Cases

Properly crafted requests for production of documents can yield some of the most useful and valuable information in divorce cases. Requests for Documents are written requests designed to allow the other side to receive copies of original documents to learn and verify the information.

Requests for production are served on parties, and the parties have 30 Days in which to provide answers to the Requests, indicating what documents are available to be copied and produced; which will be made available for inspection; or indicating that such documents requested do not exist or no longer exist. A party responding to a Request for Production can also object to the production of documents by stating with specificity that the documents will not be produced because the request is unduly burdensome, not directed toward discoverable evidence or that the purpose of the request is to harass, intimidate, or embarrass a party.

When parties disagree on producing documents, the attorneys will attempt to resolve the differences. When parties cannot resolve their differences, generally, the party requesting the information will file a Motion to Compel Production, and the judge will resolve the issue.

The most important documents in any divorce case will usually be the documents tied to the production of income, partnership and corporate controlling documents, documents that evidence ownership or sale of real property, brokerage and retirement statements, loan and credit card statements, and documents that may indicate an intent to hide or misstate income and assets.

Depositions In Florida Divorce Cases

Depositions in Florida divorce cases are a discovery tool that compels a party to answer questions from the other party’s attorney, under oath, and before a court reporter.

Depositions are a powerful tool in divorce actions, and the range of subjects is broader than what is admissible at trial. At a deposition, parties will be required to answer questions even if the answers may not later be admissible at trial.

Parties are often uncomfortable at depositions. For most parties, it will be the first time they have ever answered questions under oath, and the parties are aware that their answers can significantly impact the outcome of their divorce. Some parties are so uncomfortable with depositions that settlement in the divorce action can be reached just because a party’s deposition is looming, or in other cases, after a deposition. In some cases, settlement can be reached based on the performance and answers of the party being deposed.

Preparing For A Divorce Deposition

The key to depositions in divorce actions is preparation. The preparedness of the attorney will determine the quality of information obtained during the deposition that will help position you for negotiation discussions, mediation, or trial.

How Parties Should Prepare

  1. Review the Florida mandatory minimum disclosures
  2. Review both your financial affidavit and your spouse’s financial affidavit
  3. Review the answers to requests for admissions and interrogatories
  4. Review the documents produced from requests for production
  5. Have a detailed yet flexible outline of questions that will be covered in the deposition

How To Answer Questions In A Deposition

  • Truthfully answer only the question asked.
  • Keep your answer short and resist the inclination to provide additional information when possible. Answers should be
    • Yes or No.
    • I don’t understand the question.
    • I don’t know the answer
    • I can’t recall the answer
    • I can’t recall, but if you have a prior statement or document that will help refresh my recollection, I would be happy to review it.
  • If you don’t understand a question, request that the question be repeated or rephrased before you answer.
  • Think about your answer before responding, long, thoughtful pauses don’t show up on a transcript, but thoughtful and concise answers do.
  • If the questioning is emotional or making you upset, take breaks when you need them.
  • Don’t guess at answers. Simply answer that you do not know.

Depositions are usually done towards the end of a divorce action, as it is best to have the other discovery in hand and reviewed so that the party can be asked about their answers and documents in the deposition. You will generally only have one opportunity to depose your spouse, so preparation and organization are paramount.

If you and your attorney are well prepared, this will show the opposing counsel and party that you are taking the matter seriously, are well prepared and are comfortable with your case. Preparation, expertise, and confidence can bring cases to a resolution earlier. Accordingly, the opposing side will understand that they are in a formidable battle, leading to a favorable, mutually agreeable settlement.

Finally, depositions can be used at trial for the impeachment of a party. If your spouse answers a question one way during their deposition and then changes their answers during the trial, the deposition transcript can be used to demonstrate that the party is being untruthful.

Key Topics In A Florida Divorce Deposition

Depositions in divorce cases have certain predictable areas that are almost always covered. The issues to almost all divorces consist of child custody, child support, alimony, and property division. These areas could be covered by questioning certain aspects pertaining to:

  • Your suitability as a parent
  • Your relationship with the child(ren)
  • Any special needs of the children or parents
  • Questionable behavior, drinking, drugs, abuse, gambling, extramarital affairs
  • Employment and income
  • Time demands of employment
  • Financial affidavits
  • Education
  • Personal health

Depositions in divorce actions can and will cover areas that may be outside the scope of the divorce, in addition to questions that may not be admissible at trial. Parties must understand that there is more latitude in depositions and that any area that may even lead to admissible evidence is fair game. Attorneys will preserve objections to questions by objecting during the deposition and on the record. During a deposition, even if your attorney objects, you will generally be required to answer the question. The objection will preserve your attorney’s right to object to the question and answer being admitted at a subsequent trial.

Depositions Of Non-Parties

Depositions of Non-Parties are permitted in Florida divorce actions and may provide useful information moving forward. Non-party depositions can be friends, relatives, business partners, human resource directors, or others. In addition, non-parties can provide information as to suitability as a parent, personal habits, spending patterns, financial information, hiding assets, alcohol or drug abuse, spousal or child abuse, and criminal history.

Depositions of Non-Parties will often advance the opposing party’s willingness to negotiate and settle pending issues, as parties to a divorce will often prefer to keep their divorce matters private.

It is important to note that deposition can be conducted in person or online, assuming all parties are agreeable and a court reporter is able to be present virtually.

Vazquez & Stockmar, PLLC is a law firm serving Central Florida. Our attorneys offer dependable services in several legal disciplines, including probate, estate planning, and family law. Get in touch with us today to request a free consultation!