The Florida Divorce Process Part I:
Filing, Mediation, Parent Class, Final Judgment
Each part in this series includes the navigation panel on the left containing a Glossary of Common Family Law Terms and Definitions, relevant selections of the Florida Statutes for further reference, Florida Rules of Civil Procedure, and Florida Family Law Rules of Procedure. If you have any questions about your particular situation, please call Gainesville Florida Divorce Attorney & Family Lawyer Brian Toundas for a free consultation.
Filing for a Florida Divorce: Grounds, Service, and Temporary Relief
To obtain a divorce in Florida, a petition for dissolution of marriage must be filed and one of the following two legally acceptable reasons must be alleged: (1) one of the parties has been declared legally incompetent for a period in excess of three years; or (2) the marriage is irretrievably broken, meaning there is nothing the court can do to induce the parties to reconcile. If there are children, however, and the petition for dissolution of marriage is answered by denying the marriage is irretrievably broken, then the court may order the parties into counseling. If so, the divorce proceedings can be delayed for up to three months to provide an opportunity for the parties to reconcile.
The spouse who files the original petition is called the petitioner, and the other party is the respondent. After the petition is filed, the clerk is asked to issue a summons, and the other spouse must be legally served with the summons and a copy of the petition. Personal service of the petition and summons on the respondent by a deputy sheriff or private process server is required in all original petitions and supplemental petitions, unless constructive service is permitted by law. If proper service is not obtained, the court cannot decide issues in the case because it lacks personal jurisdiction.
Divorce proceedings are public proceedings, and the files are available at the courthouse for public review. Under certain limited circumstances, portions of the file may be sealed by order of the court. While a divorce action is pending, a trial judge may hold evidentiary hearings pursuant to motions filed in compliance with the Florida Rules of Civil Procedure and the Florida Rules of Family Law Procedure. After a hearing on a properly noticed motion, the court may enter temporary orders dealing with, but not limited to, spousal support, child support, possession or maintenance of any individual asset, the time the child or children will spend with each parent, and attorney's fees and costs.
Filing an Answer and the Counter-Petition for Divorce
After being served with the petition for divorce, the respondent has 20 days to file an answer admitting or denying each of the allegations contained in the petition. If a response in the form of an answer to a petition is not filed, the petitioner may file a Motion for Default. The case may then directly proceed to a final hearing where a judge can make a decision even if the other party refuses to cooperate. For more information, see rule 12.080(c), Florida Family Law Rules of Procedure.
In addition to filing an answer, the respondent may also file a counter-petition. In a counter-petition, the respondent may request the same or some other relief or action not requested by the petitioner. If the respondent files a counter-petition, the petitioner will have to file an answer to the counter-petition within 10 days admitting or denying the counter-allegations. Failure to file a counter-petition under certain circumstances can have devastating consequences, especially if the relief requested by the petitioner is inadequate.
Optional Discovery and Mandatory Disclosure
In addition to the Florida Rules of Civil Procedure, there are specialized rules of procedure dealing with family courts which require each party to provide the other with financial information within a certain number of days of the beginning of a case. Rule 12.285, Florida Family Law Rules of Procedure, requires each party in a dissolution of marriage to exchange certain information and documents, and file a Family Law Financial Affidavit. If a party invokes optional discovery such as serving Family Law Standard Interrogatories, then the other party must respond within specific time periods of compliance.
Failure to make required disclosures within the time required by the Rules may allow the court to dismiss the case or refuse to consider the pleadings of the party failing to comply, in addition to other sanction such as requiring the offending party to pay attorney fees and costs. This requirement also must be met in other family law cases, except adoptions, simplified dissolutions of marriage, enforcement proceedings, contempt proceedings, and proceedings for injunctions for domestic or repeat violence. Florida Family Law Rules of Procedure Form 12.932, Certificate of Compliance with Mandatory Disclosure, lists the documents that must be given to the other party. For more information, see rule 12.285, Florida Family Law Rules of Procedure.
Mediation or Settlement Conferences
Except in cases involving domestic violence, the court will order the parties to attend mediation, which is nothing more than an informal settlement conference to give the parties a chance to openly discuss and resolve the issues with a written agreement. Full or partial settlement of contested issues can be achieved at a mediation conference with the assistance of a Florida Supreme Court Certified Family Law Mediator. It is important to keep in mind, however, the mediator is not an advocate for either side and will remain impartial during settlement negotiations. Rather, it is the role of the Florida Divorce Attorney or Family Law lawyer to advocate for their clients at all stages of the proceedings, including at mediation. Therefore, the party without an attorney can expect do be at a strategic disadvantage and he or she is encouraged to seek an independent opinion from a family law attorney before signing any document.
Parenting Classes and Parenting Plans
If children are involved, the parties will be required to attend parenting classes, details of which are provided in the circuit where the divorce action is filed. Physical attendance of a parenting class is required in many judicial circuits, including the Eighth Judicial Circuit of Florida.
Cases involving minor or dependent children will require a Parenting Plan to be approved or established by the court. A model outline of two such plans have recently been established under Florida Supreme Court Approved Family Law Form, 12.995(a), Parenting Plan, and Florida Supreme Court Approved Family Law Form 12.995(b), Supervised& Safety-Focused Parenting Plan. The Parenting Plan shall be developed and agreed to by the parents and approved by a court or, if the parents cannot agree, established by the court. The Parenting Plan shall contain a timesharing schedule and should address the issues regarding the child(ren)'s education, health care, and physical, social, and emotional well-being.
Final Hearing and Final Judgment
A divorce is not over until a final judgment for dissolution of marriage is entered by the a circuit court having jurisdiction over the persons and property. The final judgment will ordinarily determine all property, support, and child related issues. Knowing in advance what the final judgment would say is obtained by the parties’ consent pursuant to a Marital Property and Settlement Agreement resolving all the contested issues in the case. The far less certain method for obtaining what you want in a divorce proceeding is a final judgment issued by the court pursuant to a final hearing where none of the contested issues have been resolved in advance.