broward divorce attorney
There are two kinds of divorce cases in Florida – contested and uncontested. An uncontested case is one where the spouses agree on the major issues like alimony, division of property, child support, and page-link. A contested case is one where the parties do not agree on one or more of these issues.
For more on uncontested divorce, see our full discussion here. For the purposes of this discussion, we will focus on the contested divorce process.
The official legal term for divorce in Florida is dissolution of marriage. But, many judges and divorce attorneys use the terms interchangeably.
There are two minimum requirements to qualify for a divorce in Florida. First, one of the parties must have been a Florida resident, as defined by statute, for at least six months before filing for divorce. Second, the marriage must be irretrievably broken – meaning that it cannot be salvaged or repaired through counseling or any other means.
Assuming that the minimum requirements have been satisfied, most contested divorce cases can be broken down into four discrete stages – pleadings, discovery, mediation, and trial.
Pleadings are the formal statement of each party’s cause of action or defense. The two primary pleadings in a divorce case are the Petition for Dissolution of Marriage filed by the Petitioner and the Answer filed by the Respondent.
Petition for Dissolution of Marriage
Every divorce in Florida starts with a petition that asks the court dissolve your marriage, i.e., grant your divorce.
The petition also lets the court know what other relief you want as part of your divorce. For example, if you and your spouse have minor children, the petition should give the court an idea of how you want timesharing and parental responsibilities to be divided. If there is real estate or personal property, the petition may specify which items you want to keep after the divorce. There are certain statutory requirements for what must be in a petition. But, as long as those requirements are satisfied, it is up to you and your divorce attorney to decide what other information to include.
Once the petition for dissolution is complete, it must be filed with the clerk of court. It is important to file the petition in the proper venue. Generally speaking, that means the petition must be filed in the county that has the most significant contacts with the parties and the subject matter. In most divorce cases, the proper venue is the county where the parties last lived together with the intention to remain married.
Service of Process
In order to grant a divorce, a Florida court must have jurisdiction over both spouses. That generally means the Respondent must be personally served with a copy of the petition for dissolution of marriage. This is a matter of due process or, in other words, fairness. If you’re asking the court to dissolve your marriage and maybe award marital property to you, the other side should at least be given notice and an opportunity to respond.
There are a few ways to get the Respondent served under Florida law. The first and preferred method is personal service. That means a certified process server goes out and physically hands a copy of the petition and any accompanying documents to the Respondent. This is usually done at the Respondent’s home or place of business, but it can be done almost anywhere depending on the circumstances of your case.
The Respondent can also be served by leaving a copy of the petition at his or her residence with any person fifteen years of age or older who also lives there.
But what if you don’t know where your spouse lives or works and you have no way to locate him or her? In that case, the best option may be constructive service of process, also known as service of process by publication. Simply put, this means providing notice of the divorce case to the Respondent through a court-approved newspaper or periodical. For obvious reasons, this is not a preferred method of service and, in some cases, limits the type of relief that a court can provide to the Petitioner.
If at all possible, it is generally best to have the Respondent personally served.
Once the Respondent is served with a copy of the petition, he or she generally has about twenty days to file an answer and provide a copy of it to the Petitioner. Like the petition for dissolution of marriage, the function and purpose of the answer is fairly straightforward. It should state with specificity which parts of the petition the Respondent agrees with and which parts he or she does not.
For example, the Respondent may agree that the marriage is irretrievably broken, but may disagree with the Petitioner about alimony, timesharing, or how marital property should be divided.
In this way, the answer, taken together with the petition, clarifies what the case is really about. It gives an indication of where the parties can find some common ground at the outset of the divorce case and allows the parties, their lawyers, and the court to focus their attention and efforts on only those issues that still need to be resolved.
The discovery process may be the most critical stage of any contested Florida divorce case. But what exactly is it?
The purpose of conducting discovery in a divorce case is to gather information. It is how each spouse builds his or her case while learning more about the strengths and weaknesses on the other side. Often, the information gathered can be used as evidence to support a claim at mediation or trial later in the proceedings. For example, if one of the spouses in the case requests alimony, the other spouse’s bank or income records obtained through discovery can be used to prove that he or she has the ability to pay.
You have a right to full disclosure of information related to your spouse’s employment, income, expenses, assets, and liabilities. This includes any information that your spouse may have chosen to keep hidden from you during your marriage.
Below are some of the tools that Fort Lauderdale divorce attorney Andrew Foster uses to ensure that your settlement is a fair and informed one or, if necessary, to effectively prepare for trial.
Interrogatories are written questions that are served on the opposing party in a divorce case. Some standard interrogatories cover important topics like child custody, alimony, property ownership, financial circumstances, potential witnesses, and more. The party who receives the interrogatories is generally required to answer them fully and truthfully within about thirty days.
Interrogatory answers must be notarized. That means the answers are sworn statements made under oath. As such, a false answer made in response to an Interrogatory may be considered perjury.
Requests to Produce
A request to produce is a written demand for copies of relevant records or documents that is served on the other spouse. These documents usually include tax returns, pay-stubs, bank statements, mortgage agreements, credit card statements, travel records, prenuptial or postnuptial agreements, and more.
A subpoena is a written command that requires the recipient to appear at a specific place and time to either testify under oath, produce documentary evidence, or both. In a divorce case, a subpoena is most often used to obtain testimony or evidence from someone other than the other spouse. Failure to obey a subpoena may be considered contempt of court.
Requests for Admission
Requests for admissions are among the most useful discovery tools because the party who is served with a request for admissions must either admit or deny each assertion under oath. Once an assertion is admitted it is considered an established fact. This limits the number of facts that have to be established at trial and helps to narrow the issues the court must eventually decide.
A deposition is an opportunity to get sworn testimony, under oath, from a party or witness outside of court. A certified court reporter is usually present to record both the questions and answers for reference or later use in court. There are several benefits to taking the deposition of the other spouse in a divorce case. One advantage is that it provides a valuable preview of what the spouse’s testimony may be if the case goes to trial in front of a judge.
The discovery process can be time-consuming and frustrating for clients who are sometimes asked to locate and produce several years’ worth of documents at a time. But it is extremely risky to have a trial or even engage in settlement negotiations without enough information.
If the discovery process has been used effectively, your divorce case should be ready for mediation. This is a good thing.
Mediation is the formal process of trying to negotiate a settlement agreement outside of court with a trained and certified family court mediator. It is usually the last chance for the parties to resolve the issues on their own without an actual trial in front of the judge.
Many judges require the parties in a divorce case to attend mediation at least once before a final hearing date can even be scheduled. And increasingly, mediation is becoming mandatory in temporary relief cases as well. There are a couple of reasons.
First, most divorce courts in Florida are extremely busy and that has led, in some cases, to a backlog of cases waiting for trial. By funneling cases through mediation first, the goal is to remove the ones that can be settled from the docket so that the court can focus on the cases that truly need judicial intervention.
Another reason mediation is so popular among judges is that it just works. The vast majority of contested divorce cases never get to trial because they settle either at mediation or before.
Some divorce cases simply cannot be settled. Maybe the other side is being unreasonable. Or maybe there is a genuine disagreement between the parties that is so fundamental that there is no common ground.
When that happens, the case goes to trial or final hearing as it is sometimes referred to in family court. A final divorce hearing is procedurally fairly similar to the way trials are generally depicted in the movies or on television. There is, of course, a judge. The parties are seated beside their attorneys who question witnesses, make objections when necessary, and give closing arguments. The most obvious difference is that there are no juries in family court. The judge makes the final decision.
The most common issues a court must decide in a divorce case include alimony, child custody, child support, and division of property. These can be complicated issues and it’s important to have an attorney with significant trial and litigation experience on your side.
The divorce process is complex and can seem confusing to someone trying to navigate through it on his or her own. Let us help. Contact Broward County divorce attorney Andrew Foster to schedule your initial consultation today.