The events leading to a divorce strike at the heart of family relationships. Divorces can turn lives upside down. It is my job to not only help you through your divorce case, but also present your facts and the law to the judge in a persuasive, thorough and concise manner. Judges do not want excessive emotion brought into their family law courtrooms. Divorce cases and almost all divorce-related cases are heard by a judge, not a jury. Judges hear most cases in their chambers (offices), except for trials and hearings involving many witnesses which are heard in a courtroom.
The way that I discuss and analyze the facts and law of your case will generally be different from how I present the same facts and law to the opposing attorney and judge. I will play devil’s advocate to explore any negative facts which may be later argued. In order to properly present your case, I will need to know all facts – good, bad, and in between. However, I will not enter the courtroom in a defensive mode unless absolutely necessary. If you ask my opinion of the outcome of a specific issue, I will tell you like I see it and will give you an estimated percentage of probability. If I give you a high percentage, that is how I see it – I do not sugar coat cases; if I give a low percentage, please don’t “kill the messenger.”
A divorce case is started by filing a “Petition for Dissolution of Marriage” with the Clerk of the Circuit Court. The person served with the Petition is required to file an Answer within 20 days. The Answer can include a “Counterpetition for Dissolution of Marriage” (that is, a divorce within a divorce).
During a divorce case, each attorney obtains “discovery” (that is, information and documents, often financially related) from the other attorney through a process called “discovery.” There are five types of discovery in a divorce case: (1) mandatory disclosure, (2) depositions, (3) interrogatories, (4) request to produce documents, and (5) request for admissions. The Respondent has 45 days to respond to any discovery request served upon him/her. Thereafter, both parties must respond to the discovery requests with 30 days. The following is a summary of the discovery types:
- Mandatory Disclosure – This is a relatively new form of discovery used exclusively in family law cases. Both parties are required to exchange 16 categories of documents within 45 days after a divorce lawsuit is served upon the Respondent. This “mandatory disclosure” can be waived by the parties, but usually is not. 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.
- A “deposition” is an out-of-court questioning of a party or witness to obtain information, preserve testimony (e.g., elderly person or a person who may move out-of-state), and/or obtain a statement which may be used to impeach the deponent if he/she testified differently at trial. An expert witness have the right to require that a deposition be taken at his/her office. Depositions are usually held in the court reporter’s office. They can last from a few minutes to a day or more. Both attorneys and clients, the deponent, and court reporter are present. After the attorney taking the deposition has ended his/her questioning, the other attorney has the right to ask his/her own questions. Also, the attorney representing the deponent can object to any question asked, but generally does not have the right to instruct his/her client not to answer a question. A deponent cannot communicate with his/her attorney during testimony at deposition. Both attorneys, the deponent, and a court reporter are present. The other attorney has right to object to questions and has the right to ask his own questions. Depositions are usually held in a court reporter office, but may be held in a deponent’s business office or an attorney’s office. An attorney will not depose his own client (because it serve to educate the other attorney), unless needed to clarify his client’s answer.
- “Interrogatories” are simply written questions. Often attorneys will serve the Standard Family Law Interrogatories on the opposing attorney without adding their own questions specific to a case even though Florida law permits adding ten additional questions to the form set of questions. However, I often craft additional questions based upon office or phone conferences with my clients. Interrogatories must be answered within 30 days, unless they are served with the initial divorce petition (in which case they can be answered within 45 days).
- “Request to Produce Documents” is a written demand that the opposing party produces a copy of listed documents with 30 days. The receiving the request has a right to object to the production of all or a portion of the documents.
- “Request for Admissions” is a written request for the other party to admit the truth of a list of facts within 30 days. An example of a request for admission would be “Please admit that you own a savings account with Wachovia Bank in your name only having an account number ending in 4593.”
If an opposing attorney attempts to delay a divorce case, there exists a little used, but very effective, tool called a “Case Management Conference.” A CMC is a short hearing which usually lasting 5-10 minutes and is sometimes conducted by telephone. If a case seems straight forward with few issues, but the opposing attorney is needlessly delaying a case, I will request the judge to establish time deadlines to complete discovery, schedule the trial date, etc.
The parties of a divorce case can settle their case without mediation through a “Marital Settlement Agreement.” However, it is more typical that cases are settled through mediation by a “mediation settlement agreement”. About 70% of my cases have fully or partially settled by mediation. A mediator has no power and cannot even submit recommendations to a judge. The only function of a mediator is to facilitate settlement if possible. Mediation proceedings are confidential and, therefore, unless a written agreement is reached, a judge cannot be informed of what was discussed during the mediation conference. Typically, a mediator will first meet with the parties and attorneys together to explain the mediation process generally. Then the mediator usually separates each party and attorney in different rooms and shuttles between the rooms. Successful mediation gives both parties certainty of result, rather than relying on a judge to make all the decisions for both parties. Because of my experience, I can often predict the outcome of a divorce case within a range of reasonable probability. However, judges can occasionally throw curve balls. My definition of a good settlement agreement is one in which “each party walks away slightly unhappy.”
If you have a will and have named your spouse as beneficiary, a final judgment of divorce automatically terminates your spouse’s rights. However, if your spouse is named as beneficiary of your financial accounts (e.g., bank accounts and certificate of deposit, 401k), a final judgment may not automatically terminate his/her rights. The case law is evolving. Therefore, if you desire to remove your spouse as beneficiary after the entry of the final judgment, you should notify the financial institution in writing.