Miami family law attorney blog
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Procedure
Posted by Nydia Streets of Streets Law in Florida Family Law Procedure
When a party fails to follow a Florida family court order, that party may face sanctions which include monetary fines. Before a court can order such sanctions, certain steps and procedures must be followed in order to preserve each party’s right to due process. This is illustrated in the case Alonso v. De Zarraga, 3D18-1127 (Fla. 3d DCA May 29, 2019).
Posted by Nydia Streets of Streets Law in Florida Family Law Procedure
What is a lis pendens in Florida? This is a notice regarding real property which is recorded in public records and alerts the public to the fact that there is pending litigation concerning the property. The purpose of it is to give notice to any interested parties that title to the property is not clear and is in dispute. A party in a Florida divorce case might seek to put a lis pendens on a property because he or she wants to prevent the other party from selling or otherwise disposing of the property before the court makes a decision regarding who owns the property. The case Rokosz v. Haccoun, 3D18-2459 (Fla. 3d DCA June 5, 2019) shows what limits can be placed on a lis pendens.
Posted by Nydia Streets of Streets Law in Florida Family Law Procedure
How long after a trial is a final judgment issued in a Florida divorce case? Usually, final judgments are issued within a short time after the hearing, but in some cases, it can take several months. This may cause distress for some parties who are waiting for alimony or child support to be paid, for example. While there is no rule that states a deadline for a judge to enter a final judgment after a trial, the delay must be reasonable as indicated in Saboff v. Saboff, 5D18-3123 (Fla. 5th DCA June 7, 2019).
Posted by Nydia Streets of Streets Law in Florida Family Law Procedure
Discovery in a Florida family law case is the process in which parties request documents or other evidence from each other or even third parties in an effort to investigate and prove claims made in the case. The most common type of discovery in a Florida divorce case are financial documents - bank records, income statements, business records, and the like. In the case Hall v. Hall, 5D18-1608 (Fla. 5th DCA June 14, 2019), we see what happens when a third party is subpoenaed for information and an objection is raised by that third party.
Posted by Nydia Streets of Streets Law in Florida Family Law Procedure
Most Florida divorce cases are resolved during a bench trial. This means a judge, rather than a jury, makes a decision about the issues in the case. Because the judge is one person, many parties fear they may not receive a fair trial if the judge shows bias in favor of one party over the other. This was the issue in the case Higgins v. Higgnis, 5D19-957 (Fla. 5th DCA June 20, 2019) in which the husband appealed an order denying his motion to disqualify the trial court judge.
Posted by Nydia Streets of Streets Law in Florida Family Law Procedure
What are the grounds for disqualifying a lawyer in a Florida family law case? The recent appellate case Goff v. Goff, 2D18-3163 (Fla. 2d DCA June 26, 2019) goes over what is required to establish that disqualification of an attorney is appropriate.
Posted by Nydia Streets of Streets Law in Florida Family Law Procedure
A charging lien can be entered against a party in a Florida divorce case to secure attorneys’ fees from property that is awarded to the party in a final judgment of divorce. Certain requirements must be met before the lien can be imposed, however, as seen in the case Szurant v. Aaronson, 2D18-2092 (Fla. 2d DCA July 17, 2019).
Posted by Nydia Streets of Streets Law in Florida Family Law Procedure
When a party fails to meet his or her obligations under a Florida child support or alimony order, he or she may be held in contempt of court. The party asking for contempt must show the other party had the ability to comply with the order but chose not to. But before taking the steps to prove this, a party must make sure he or she is in compliance with procedural rules to avoid having an order of contempt overturned on appeal. Such was the case in Hart v. Hart, 3D19-450 (Fla. 3d DCA July 24, 2019).
Posted by Nydia Streets of Streets Law in Florida Family Law Procedure
Florida family courts are courts of equity. This means the court has discretion with regard to certain aspects of a case to “balance the scales”. One such aspect is attorneys’ fees and costs. In a Florida family law case, attorneys’ fees can be awarded to a party based on a need and ability to pay analysis.
Posted by Nydia Streets of Streets Law in Florida Family Law Procedure
Due process is required in Florida family law cases. This refers to the opportunity for each party to present his or her side of the case with fair notice. When a court takes action without notifying the parties or when there is no pending motion on the action taken, this usually results in a due process violation. Such was the case in Singer v. Singer, 4D18-1170 (Fla. 4th DCA July 3, 2019).
Posted by Nydia Streets of Streets Law in Florida Family Law Procedure
It is well-established that an appeal must be filed within 30 days of the date an order is entered, or the appellate court has no jurisdiction to consider an appeal. But does this mean the accompanying filing fee must also be paid before the clerk must accept the notice of appeal for filing? This issue arose in the case Burns v. Burns, 4D19-0124 (Fla. 4th DCA June 5, 2019) in which the former husband attempted to file his notice of appeal on the 30th day, but it was not docketed until the next day, calling into question the viability of his appeal.
Posted by Nydia Streets of Streets Law in Florida Family Law Procedure
As parties who hire lawyers in their Florida family law cases soon realize, in addition to attorneys’ fees, there are costs associated with a case that must be paid as well. From process servers to filing fees and beyond, Florida family law litigation can be expensive. Most lawyers will tell you a court reporter is worth his or her weight in gold, and the appellate case Padgett v. Padgett, 1D17-2217 (Fla. 1st DCA May 2, 2019) tells us why.
Posted by Nydia Streets of Streets Law in Florida Family Law Procedure
If a party does not agree with a trial court’s decision in his or her Florida family law case, he or she may have the right to appeal the decision. The party must ensure that he or she has followed the appropriate steps to preserve the right to appeal, and this is usually best done through an attorney. As the recent appellate case Browner v. Browner, 1D19-0556 (Fla. 1st DCA April 22, 2019) indicates, knowing something as basic as whether or not it is possible to appeal an order is crucial.
Posted by Nydia Streets of Streets Law in Florida Family Law Procedure
When a party voluntarily dismisses a Florida family law case, the court no longer has jurisdiction over the dismissed case. This means the same case cannot be re-opened and re-litigated. A party wishing to proceed again on the case needs to file a new case under a new case number. In the recent appellate case Carlton v. Zanazzi, 2D18-603 (Fla. 2d DCA March 6, 2019), the court reviewed a case in which a divorce was dismissed but then later re-filed under the previous case number.
Posted by Nydia Streets of Streets Law in Florida Family Law Procedure
If a party to a Florida family law case wants the other party to undergo psychological testing, specific steps must be followed. The rule guiding these types of evaluations is found in the Florida Family Law Rules of Procedure. Generally, the party seeking such an evaluation must show that good cause exists for one and that the condition subject to examination be in controversy. Such evaluations are most commonly requested in cases involving a child custody dispute.
Posted by Nydia Streets of Streets Law in Florida Family Law Procedure
“Although determining whether notice provided is reasonable depends upon the circumstances of each case, we have not identified a single case where less than twenty-four hours' notice of a hearing impacting an individual's parental rights was upheld as reasonable.” - The Second District Court of Appeal in Florida in Ferris v. Winn, 242 So.3d 509 (Fla. 2d DCA 2018). In this case, a father’s right to communicate with his children was suspended after he received less than 24 hours notice of a hearing on the issue.
Posted by Nydia Streets of Streets Law in Florida Family Law Procedure
Parties to a Florida divorce case are understandably concerned about receiving a fair trial in front of a judge. If a party has a reasonable fear that he or she will not receive a fair hearing in front of a judge, he or she may file a motion for disqualification. However, as we see in the case Erlinger v. Federico, 242 So.3d 1177, certain behavior by a judge, although unpleasant to a litigant, does not automatically disqualify the judge from presiding over a case.
Posted by Nydia Streets of Streets Law in Florida Family Law Procedure
An important component of a Florida family law case is proper procedure. Failure to follow proper procedural steps could result in a party losing a valid argument or claim based on technicalities. For example, knowing where to file your case is an important first procedural step that needs to be followed to start your legal process. In the case Robinson v. Robinson, 248 So.3d 174 (Fla. 1st DCA 2018), an order dismissing a suit to set aside a mediated settlement agreement was appealed.
Posted by Nydia Streets of Streets Law in Florida Family Law Procedure
If an ex-spouse stops paying court-ordered alimony, a remedy available to the other ex-spouse is a contempt proceeding. At a hearing on a motion for contempt, if the court finds a party willfully failed to pay court-ordered support, a suspended jail sentence may be imposed, contingent on the party paying what is called a purge amount within a certain amount of time to avoid jail. Because incarceration is involved, a court must be careful to provide due process protections in these types of hearings.
Posted by Nydia Streets of Streets Law in Florida Family Law Procedure
While we hope that divorcing couples can part ways amicably, that is not always the case. Unfortunately, the divorce court is sometimes put in the position of referee, having to enter orders that control the conduct of the parties toward each other. This is what happened in the case Ash v. Campion, 247 So.3d 581 (Fla. 1st DCA 2018).
