Posted by Nydia Streets of Streets Law in Florida Family Law Procedure

How long does a party have to serve the other party with his or her petition in a Florida family law case? According to the rules of procedure, a party has 120 days before the court can issue a notice that service must occur within a certain amount of time or the case will be dismissed. This was an issue in the case Carlos v. Carlos, 4D20-2236 (Fla. 1st DCA August 18, 2021).

Fifty-five days after the husband filed his petition for divorce, the court issued an order requiring the husband to file documents proving service occurred no later than the 120th day after his petition was filed. The husband did not file proof of service by that date, so the trial court dismissed the case. The husband appealed.

The appellate court reversed, holding “Florida Rule of Civil Procedure 1.070(j) offers a remedy if service of process is not effectuated within 120 days after filing the initial pleading: ‘[T]he court, on its own initiative after notice or on motion, shall direct that service be effected within a specified time or shall dismiss the action without prejudice or 2 drop that defendant as a party . . . .’ Id. But even the authorization to dismiss without prejudice has limits because ‘if the plaintiff shows good cause or excusable neglect for the failure, the court shall extend the time for service for an appropriate period.’ Id. Here, the court issued the order fifty-five days after the initial pleading was filed. On day 122, the court dismissed the case without allowing the husband an opportunity to show ‘good cause or excusable neglect.’” The case was remanded for the trial court to hold a hearing on whether or not there was excusable neglect for the husband’s failure to serve the petition on time.

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