Clients often ask me, “what can I expect in my divorce case?” It is a good idea to explain the process of a dissolution case during one of the first meetings with the client, so he/she will know what to expect as the process unfolds. Although many clients make the comment, “my divorce case is different,” there are many aspects of the process that will be common in almost all cases.
What Pleadings Can I Expect In My Divorce Case?
Petition for Dissolution – A divorce case in Florida is begun by filing a “Petition for Dissolution of Marriage” with the Clerk of the Circuit Court. The Respondent, the person served with the divorce petition, must file an Answer within 20 days.
All divorce cases in Florida are heard by a judge, not a jury (unless paternity or personal injury is involved, those issues can be tried by a jury). Judges do not want excessive emotion brought into their courtrooms. Therefore, a good attorney will make sure the client will be calm in the courtroom. The demeanor of a client in court, whether testifying or not, will be observed by the judge. Many divorce cases are heard in a judge’s chambers, except for trials and hearings involving numerous witnesses.
Answer/Counter-Petition – In responding to the Petition, the Respondent will file an Answer. The Answer often includes a “Counter-petition for Dissolution of Marriage.” If the Respondent is requesting relief not addressed in the original Petition it is recommended that a Counter-petition be filed to allow the Court authority to award the affirmative relief to the Respondent.
What Discovery Can I Expect In My Divorce Case?
Discovery – During the case, each attorney has the right to obtain “discovery” (i.e., information and documents, often financially related) from the other attorney. There are five types of discovery in Florida: 1. Mandatory Disclosures, 2. Request for Admissions, 3. Interrogatories, 4. Request for Production of Documents, and 5. Depositions. The Respondent has 45 days to respond to discovery requests served with the Petition. Thereafter, either party who receives a discovery request must respond within 30 days.
Mandatory Disclosures – It is mandated by the Florida Supreme Court that each party in a family law case produce certain documents at the beginning of the case. The documents which need to be produced are as follows:
-Tax Returns for prior 3 years
-Pay Stubs (evidence of income) for 3 months prior to Financial Affidavit
-Loan Apps/Financial Statements for 12 months prior to the Financial Affidavit
-All deeds, promissory notes and leases
-Checking, Savings, Money Market CD statement (3 months)
-Brokerage Account statements for last 12 months
-Pension, Def Comp, IRA, 401(k) etc, most recent statement
-Dec Page, last statement for life ins policy
-Health and Dental cards for self/spouse/children
-Corp/Partnership/trust tax returns last 3 years(over 30% int)
-Credit card statements, promissory notes, prior 3 months
The “mandatory disclosure” can be waived by the parties, but should not be waived in cases involving significant assets and/or liabilities. However, the filing of a “Financial Affidavit,” which is part of mandatory disclosure, cannot be waived. A Financial Affidavit is the most important financial document filed by each party in a divorce case. It contains detailed information about one’s income, monthly expenses, assets, and liabilities. Florida law permits a final judgment of divorce to be reopened at any time if a spouse filed a significantly inaccurate Financial Affidavit.
Request for Admissions – A request for admissions, sometimes also called a request to admit, are a set of statements sent from one litigant to an adversary, for the purpose of having the adversary admit or deny the statements or allegations therein. Requests for admissions are part of the discovery process in a civil case. If admitted, the statement is considered to be true for all purposes of the current case. Parties may also use this discovery device to request that other parties verify that documents are genuine. Requests for admission are generally used toward the end of the discovery process to settle uncontested issues and simply the trial.
Interrogatories – Interrogatories are written questions submitted to the opposing party during the divorce process. Interrogatories must be answered, truthfully, under penalty of perjury within 30 days. The opposing party may object to answering the questions if they feel they are arduous in nature and have no bearing on the case. Interrogatories should be straightforward, asking for information that would be readily available. Florida law permits divorce lawyers to add up to ten additional questions to the form Standard Family Law Interrogatories, most attorneys surprisingly do not do so.
Request for Production – A Request for Production is a request for documents from the opposing party that relate to issues in your divorce case. The “request for production” of documents must set forth the items to be inspected. You must describe the documents by individual item or by category. Below are samples of information or documents you can ask for:
•All written reports of each person whom you expect to call as an expert witness at trial.
•All documents upon which any expert witness you intend to call at trial relied to form an opinion.
•All written, recorded, or signed statements of any party, including both parties to the divorce, witnesses, investigators, friends, family members or employer of the parties concerning the subject matter of this divorce action.
•All photographs, videotapes or audio tapes, emails, surveys or other graphic representations of information concerning the subject matter of this divorce action.
Depositions – A deposition is, “An important tool used in pretrial discovery where one party questions the other party or a witness in the case. Often conducted in an attorney’s office, a deposition requires that all questions be answered under oath and be recorded by a court reporter, who creates a deposition transcript. Increasingly, depositions are being videotaped. Any deponent may be represented by an attorney. At trial, deposition testimony can be used to cast doubt on a witness’s contradictory testimony or to refresh the memory of a suddenly forgetful witness. If a deposed witness is unavailable when the trial takes place — for example, if he or she has died — the deposition may be read to the judge in place of live testimony.”
Florida Mandated Court Submissions – It is mandated by the Florida Supreme Court that each party in a family law case produce certain documents at the beginning of the case. Those documents include, but are not limited to, the following:
Notice of Social Security Number
Certificate of Mandatory Disclosures
Certificate of Completion of Child Parenting Class
Child Support Worksheet
Marital Settlement Agreement
Resolution of My Divorce Case
Mediation – Meditation during divorce is a way of finding solutions to issues such as child custody and spousal support. It is an alternative to formal process of divorce court. During mediation, both parties to the divorce and their attorneys meet with a third party. This third party, the “mediator” assists the parties in negotiating a resolution to their divorce. Parties have the opportunity to discuss the issues, clear up any disagreements and come to an agreement that they both agree to. The mediator is an objective party. It is not his/her job to resolve problems or force an agreement on the parties. He/She helps the parties come to an agreement by acting as an intermediary. He/she may offer an opinion or make suggestions but, at no time are they allowed to force an agreement upon the parties. A mediator has no power and the sole function of a mediator is to facilitate settlement if possible. Proceedings are confidential. Mediation is required in Florida divorce cases before any hearing for temporary relief or trial. The benefits of settlement, with or without mediation, is saving substantial attorney fees and costs, eliminating the time and emotion of trial, and having a certain result of a settlement agreement, and not relying on the judge to make all decisions for both parties.
Trial – If mediation is unsuccessful, then trial is the only remaining option, unless the parties settle before trial. The problem with a late settlement is the cost of additional attorney fees and litigation costs. The judge will schedule a Pretrial Conference. Each attorney, under Florida law, is required to file a Pretrial Conference Statement which lists the lay witnesses, expert witnesses, documents anticipated to be introduced at trial, the stipulations (attorney agreements) to reduce unnecessary issues at trial, the estimated length of trial, etc. The judge will schedule the trial date (often 60-90 days after the Pretrial Conference). Typically, attorney fees for trial, including the preparation and attendance at trial, will be three to four times more than the attorney fees previously incurred.
A divorce trial is not to air all the dirty linen. It’s not a “She did, he did” drama, like a daytime soap. It is the standard legal way that contracts are examined, broken, changed, or ended, when the two parties to that contract can’t come to a decision. Marriage is a legally binding contract over which the State retains the right to rule whether or not it can be dissolved. It is a legal process.
The process is for each side to present to the court their demands, backed up by their documents and reasons for their demands. Of course there are “arguments” on both sides, i.e. reasons for the demands, presented both in writing and then orally by the attorneys representing the parties. But here is the most important point: A trial can be your best friend because the decisions made by the Judge are not arbitrary. He makes his decisions based on (A) The facts presented (B) The supporting documents provided, and (C) Case law that is already on the books, i.e. cases that have already happened over the years on which judges have ruled. At the completion of the trial, the judge will issue an Order on all of the issues of the case.
For more information on what I can expect in my divorce case, click here.