Miami family law attorney blog
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Procedure
Posted by Nydia Streets of Streets Law in Florida Family Law Procedure
When can a lawyer be disqualified from representing a spouse in a Florida divorce case? Disqualification of a lawyer is an extraordinary remedy,. This was an issue in the case Phinney v. Phinney, 3D24-1314 (Fla. 3d DCA January 15, 2025).
Posted by Nydia Streets of Streets Law in Florida Family Law Procedure
Issues that are ruled on at a hearing in a Florida family law hearing must be requested in the pleadings filed by the parties or tried by consent. To determine whether an issue was tried by consent, the following factors are considered: “(1) ‘whether there was 'a fair opportunity to defend' the issue’ and (2) ‘whether the defending party 'could have offered additional evidence' if the issue had been included in the operative pleading or motion." Campana v. Trabold, 2D2024-0216 (Fla. 2d DCA December 18, 2024).
Posted by Nydia Streets of Streets Law in Florida Family Law Procedure
Sometimes an automatic assumption in a Florida family law case is that if one party earns significantly more income than the other party or otherwise has a surplus of funds after monthly expenses, that party should be ordered to pay the attorney’s fees of the other party. But this is just one part of the analysis, as illustrated in the case Thomas-Jones v. Jones, 5D2023-1080 (Fla. 5th DCA December 6, 2024).
Posted by Nydia Streets of Streets Law in Florida Family Law Procedure
Filing your petition for appeal in the correct court is one of the first steps to protecting your appellate rights. Since there are strict deadlines to follow in appellate matters, the failure to timely file in the correct court can be fatal to an appeal. This was an issue in the case McGann v. Walker, 1D2023-1294 (Fla. 1st DCA December 11, 2024).
Posted by Nydia Streets of Streets Law in Florida Family Law Procedure
When a party requests to remove a judge from presiding over a Florida family law case, this is done through a motion for disqualification. The rules governing this type of motion have strict deadlines. This was an issue in the case Pekel v. Leyva,3D24-1799 (Fla. 3d DCA November 27, 2024).
Posted by Nydia Streets of Streets Law in Florida Family Law Procedure
When appealing a Florida family law order, it is important to understand if the order is final or non-final. If it is non-final, it is important to understand if the appellate rules of procedure allow it to be appealed. Understanding these issues can avoid potential waste of money and time in appealing an order that may not be appealed under the rules. This was an issue in the case Gaskins v. Bahour, 2D2023-2617 (Fla. 2d DCA November 27, 2024).
Posted by Nydia Streets of Streets Law in Florida Family Law Procedure
Chapter 742 of the Florida Statutes governs paternity cases in Florida. Subsection 742.045 states “The court may from time to time, after considering the financial resources of both parties, order a party to pay a reasonable amount for attorney’s fees, suit money, and the cost to the other party of maintaining or defending any proceeding under this chapter, including enforcement and modification proceedings.” Does this include fees when a paternity case is appealed? This was an issue in the case C.T. v. T.G., 6D2023-1771 (Fla. 6th DCA November 15, 2024).
Posted by Nydia Streets of Streets Law in Florida Family Law Procedure
What is a writ of mandamus in a Florida family law case? This is a petition filed with the appellate courts that requests an order directing the trial court to take action. This was an issue in the case Labriola v. Da Silva, 3D24-1726 (Fla. 3d DCA November 20, 2024).
Posted by Nydia Streets of Streets Law in Florida Family Law Procedure
Attorney’s fees can be awarded in a Florida family law case based on financial disparities between the parties. If one party earns a lot more money than the other party, and has the ability to also pay fees for the other party, and the other party has a need for fees to be paid, the higher-earning party may be ordered to pay attorney’s fees. Florida Statute 61.16 allows the court to make this determination. This was an issue in the case Ospina-Shone v. Shone, 3D23-0917 (Fla. 3d DCA November 6, 2024).
Posted by Nydia Streets of Streets Law in Florida Family Law Procedure
Florida due process rules require that both sides of a case be given a full and fair opportunity to be heard. So a court cannot usually make a decision in the case if only one party has presented his or her evidence and arguments. This was an issue in the case Domnin v. Domnina, 4D2023-0376 (Fla. 4th DCA October 30, 2024).
Posted by Nydia Streets of Streets Law in Florida Family Law Procedure
Can I seal my Florida family law case? Florida Rule of General Practice and Judicial Administration 2.420 sets forth the conditions under which court records are determined to be confidential and therefore unviewable by the public. Florida court proceedings are generally presumed to be public records with few exceptions. Disclosure of records in a sealed Florida litigation case was an issue in the case Crouch v. Brumer, et. al., 3D24-0287 (Fla. 3d DCA October 30, 2024).
Posted by Nydia Streets of Streets Law in Florida Family Law Procedure
Once a Florida family law case is appealed, the trial court may not be able to enter certain orders if they conflict with the jurisdiction of the appellate court. Nonetheless, each order being appealed must be properly brought before the appellate court by following the Florida Rules of Appellate Procedure. This was an issue in the case Dunaj v. Worley, 3D24-0438 (Fla. 3d DCA October 16, 2024).
Posted by Nydia Streets of Streets Law in Florida Family Law Procedure
The wording in an order granting a motion to dismiss in a Florida family law case is important, as it can mean the difference between a final judgment and a non-final order. Most orders granting a motion to dismiss contain other language which give a party a certain number of days to file an amended pleading. An order of dismissal was an issue in the case Contreras v. Fernandez, 3D24-0894 (Fla. 3d DCA October 2, 2024).
Posted by Nydia Streets of Streets Law in Florida Family Law Procedure
What is vexatious litigation in a Florida family law case? “Vexatious” is defined by Black’s Law Dictionary as “lacking a reasonable or probable cause or excuse, and can include conduct that is harassing or annoying.” So when someone accuses a party to a divorce case, for example, of being vexatious, it means a party is accused of filing motions or taking other actions in the case for the purpose of harassment and/or delay. A party who is found by a court to be vexatious can be ordered to pay attorney’s fees to the other party. This was an issue in the case Burr v. Ospino, 3D23-1207 (Fla. 3d DCA October 2, 2024).
Posted by Nydia Streets of Streets Law in Florida Family Law Procedure
What is a bifurcated divorce in Florida? This refers to a divorce case that is handled in two parts - the parties may not be ready to address issues in their case such as equitable distribution, alimony, etc., but they want to be legally single instead of waiting until they are ready to address all of those issues. So if the case is bifurcated, the court might enter a partial final judgment only dissolving the marriage, and then later enter another partial final judgment resolving the remaining issues in the case. This method is discouraged, though, by the Supreme Court of Florida as cited in the case Shlimbaum v. Shlimbaum, 4D2023-1876 (Fla. 4th DCA September 25, 2024).
Posted by Nydia Streets of Streets Law in Florida Family Law Procedure
What does dismissal without prejudice mean in a Florida family law case? This refers to the right of a litigant to re-file a case. For example, if a motion to dismiss is granted “without prejudice” it means the person who filed the dismissed petition can re-file it in the future. This may be appropriate where, for example, a petition is defective and needs to be corrected before the court can move forward on the petition. This was an issue in the case Pacin v. Granja, 3D23-2295 (Fla. 3d DCA September 18, 2024).
Posted by Nydia Streets of Streets Law in Florida Family Law Procedure
Can a party decline to produce certain records in a Florida family law case because of the Fifth Amendment privilege against self-incrimination? This was an issue in the case Fields v. Coletta, 3D24-1177 (Fla. 3d DCA September 11, 2024).
Posted by Nydia Streets of Streets Law in Florida Family Law Procedure
Florida appellate courts have issued several opinions which discuss the necessity of including a transcript when appealing a Florida family law case. A transcript of the hearing at which the disputed order was entered needs to be provided so that the appellate court can review the full spectrum of what occurred at the hearing to make the trial court reach its decision. This was an issue in the case Julia v. Ramos-Baez, 6D2023-1858 (Fla. 6th DCA August 23, 2024).
Posted by Nydia Streets of Streets Law in Florida Family Law Procedure
Due process in a Florida family law case refers to the right of each party to fully participate in the proceeding with notice and and opportunity to be heard. Due process is an important to ensure each party has a fair and meaningful opportunity to participate in the proceedings. This was an issue in the case Rodriguez v. Rodriguez, 3D23-1817 (Fla. 3d DCA August 21, 2024).
Posted by Nydia Streets of Streets Law in Florida Family Law Procedure
When considering appealing a Florida family law order, knowing the deadlines for appeal and filing of various motions is important. Failure to follow these strict deadlines may result in the dismissal of an appeal, even one that may have merit. This was an issue in the case Jamison v. Knox, 5D2024-0934 (Fla. 5th DCA August 9, 2024).
