Posted by Nydia Streets of Streets Law in Florida Divorce
How many days of notice must be given before a trial proceeds in a Florida divorce case? According to the Florida Rules of Civil Procedure, a trial cannot be set less than 30 days from the date a notice for trial is issued. This was an issue in the case Damas v. Rappleye, 3D21-684 (Fla. 3d DCA December 29, 2021).
On July 2, 2020, the trial court entered an order setting trial for July 23, 2020 in the parties’ divorce case. The former wife filed a motion to change the trial date, arguing that it did not comply with Florida Rule of Civil Procedure 1.440(c) which states in part “If the court finds the action ready to be set for trial, it shall enter an order fixing a date for trial. Trial shall be set not less than 30 days from the service of the notice for trial. By giving the same notice the court may set an action for trial.” The trial court denied the request to change the trial date, as well as a subsequent motion for reconsideration. Trial went forward and a final judgment of divorce was eventually entered. The former wife appealed.
The appellate court agreed with the former wife, holding “Rule 1.440(c) mandates that the ‘[t]rial shall be set not less than 30 days from the service of the notice for trial.’ ‘Strict compliance with Florida Rule of Civil Procedure 1.440 is mandatory, and the failure to follow it is reversible error.’ Chancey v. Young, 303 So. 3d 259, 260 (Fla. 5th DCA 2020); see also Rivera v. Rivera, 562 So. 2d 833, 834 (Fla. 3d DCA 1990) (reversing for a new trial in a dissolution of marriage action where ‘[t]he lower court failed to comply with Fla. R. Civ. P. 1.440(c) in that it set the final hearing less than 30 days from service of the notice of hearing’).”
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