Wendy L. Robbins, Esq. 21 ST Annual Nuts and Bolts of Divorce February 13, 2013

WHERE TO START?

FLORIDA SUPREME COURT FORMS

FRIENDS – (don’t forget Battle of the Legal Bands – 03/10/13!)

DLA/PSB MENTORS

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 es/index.shtml. es/index.shtml

Which type of Dissolution of Marriage Action is Necessary? Simplified dissolutions are used when… The 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 (a) at the Florida State Courts website. Florida State Courts website Filing for Dissolution-Petition

For all other types, use a Regular Petition for Dissolution. There are three types: Form (b)(1) - Dissolution with Children and Property Form (b)(2) - Dissolution with Property but No Children Form (b)(3) - Dissolution with No Children or Property Ex. the parties may not agree on the terms or the necessity of a dissolution. Filing for Dissolution-Petition

Jurisdiction Fla. Stat. § : 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)).

Filing for Dissolution-Petition Jurisdiction continued… The residency requirement may be demonstrated in two ways: By providing a copy of a current Fla. driver’s license, Fla. identification card, or voter’s registration card. By an Affidavit of Corroborating Witness – Form (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 (i).

Filing for Dissolution-Petition Venue (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).

Filing for Dissolution-Petition Venue 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 §§ (2010).

Filing for Dissolution-Petition Service of Process Personal Service: Forms (a) and (b) Constructive Service: Forms (a) and(b) Military Service may require additional steps. See, e.g., the Memorandum for Certificate of Military Service, Form (a).

You will also need to file… Family Court Cover Sheet – Form Must be filed with the first pleading or motion to open or reopen any domestic or juvenile case. See Fla. Fam. L.R.P (a). Notice of Social Security Number – Form (j) Must be filed by both parties in any paternity, child support, or dissolution of marriage case. See Fla. Stat. § (7). Filing for Dissolution-cont.

Certificate of Compliance with Mandatory Disclosure – Form Fla. Fam. L.R.P (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.

Certificate of Compliance with Mandatory Disclosure – Form continued… This 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 (h). See Form for details on what type of information must be disclosed. Filing for Dissolution-cont.

Family Law Financial Affidavit – Form (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 (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 (b) if your client’s individual gross income is under $50,000 per year. Use Form (c) if it is $50,000 or more per year. Filing for Dissolution-cont.

Child Support Guidelines Worksheet – Form (e) Must be completed if a party is requesting child support. Fam. L.R.P (j). If the spouse’s income is unknown, this form may be filed after receipt of the spouse’s financial affidavit, but it must be filed at or before any hearing on child support. Filing for Dissolution-cont.

UCCJEA Affidavit – Form (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. § ) 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.

Filing for Dissolution-Other If 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.Florida State Courts website If the case involves domestic violence, you can file a Request for Confidential Filing of Address, Form (h), to keep your client’s address confidential for safety purposes.

Filing for Dissolution-Other Fla. Fam. L.R.P (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 (b)-(g). If there is another pending case involving the same parties or issues, file a Notice of Related Cases, Form (h). Ex. where one spouse already initiated a child support proceeding, or if there is a Domestic Violence case involving the parties.

The terms “custody,” “visitation,” “primary/secondary” parent and “custodial/non-custodial” parent, were eliminated from Florida’s statutory scheme in The new terms in this area are “shared/sole parental responsibility” and “time-sharing.” See Fla. Stat. § (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. PARENTING PLAN Filing for Dissolution-

See Fla. Stat. § (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 (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 court’s consideration using Form (a). NOTE: Form (b) is for supervised time-sharing. PARENTING PLAN Filing for Dissolution-

The 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 (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 child’s best interests, the court must consider the factors listed at Fla. Stat. § 61.13(3). PARENTING PLAN Filing for Dissolution-

FILING AN ANSWER/RESPONSE TO A PETITION FOR DISSOLUTION Prepare your client’s answer to the Petition for Dissolution of Marriage. AND ALWAYS 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 Course

The 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. Dep’t of Children and Families at OR directly at FamilyStabilizationCourseProvidersList.pdf. FamilyStabilizationCourseProvidersList.pdf Parenting Course-continued…

A 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 $ 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-continued…

Mandatory disclosure under Fla. Fam. L.R.P starts the discovery process. But you can also use interrogatories. File a Notice of Service of Standard Family Law Interrogatories, Form (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 (b) Modification Proceedings – Form (c) You can include up to 10 additional interrogatories without leave of Court (Fla. Fam. L.R.P (b)). Discovery

Consider other forms of discovery Request for production – see Fla. R. Civ. P Request for admissions – see Fla. R. Civ. P Depositions – see Fla. Fam. L.R.P 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 Discovery-continued…

Other Considerations See Florida State Courts website for information on… Florida State Courts website Special Considerations for Military Personnel Unique situations (e.g., deployment, military benefits) Military regulations Federal statutes Florida statutes Relocation Contempt/Enforcement Support unconnected with dissolution of marriage E-FILING - INFORMATION ABOUT EFILING AND REGISTERING CAN BE FOUND AT

E-FILING

INFORMATION ABOUT E-FILING

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