It is natural to be afraid of the unknown. The divorce process is scary because people without legal training really have no idea what is going to happen during their divorce. In fact, one of the first questions I am asked in an initial consultation is, “what is going to happen to me?”
Although each individual’s circumstances are unique, the general procedure is almost always the same and many clients take comfort in knowing what is going to come next, procedurally. Therefore, I have compiled a general outline of the steps in the divorce process, from the standpoint of the person filing for divorce. I will discuss each step in more detail in upcoming blogs. If you have a topic or question you want me to blog about, please contact me at firstname.lastname@example.org
STEP ONE: DRAFTING THE PETITION FOR DISSOLUTION OF MARRIAGE AND RELATED DOCUMENTS
The first step in the divorce process is to draft the Petition for Dissolution of Marriage, which basically sets out in general terms what you are asking for in the divorce (alimony, shared parental responsibility). In addition, there are several other documents that are required to file the divorce if you are hiring a lawyer the lawyer will draft these documents for you. If you filing pro se (on your own), you can find the relevant forms at flcourts.org. The initial documents to be drafted usually include: The Petition for Dissolution of Marriage, a Summons, Notice of Social Security Disclosure, UCCJEA, Notice of E-mail Designation, Notice of Related Case, and a Civil Cover Sheet. Additional documents may also be drafted at this time so they can be served with the Petition. These may include a Request to Produce, Interrogatories and/or a Motion for Temporary Relief.
STEP TWO: FILING THE DIVORCE WITH THE CLERK OF COURT
After the documents are drafted, they must be filed with the clerk of the court in the appropriate venue. The clerk currently charges approximately $420.00 to file the divorce and issue the summons. Your attorney has normally collected the filing fee at the time they are retained and will e-file the documents necessary to begin the divorce process with the Clerk.
STEP THREE: SERVING THE DIVORCE ON YOUR SPOUSE
Service means that a sheriff or process server will go to your spouse’s home or work (or any other place you designate) and serve them–give the divorce documents to them (or leave them in certain situations). The summons will explain to your spouse the timeframe for them to “Answer” the allegations in your petition (20 days) and other pertinent information regarding their Answer. The Sheriff or the process server does charge a fee to serve the other party (usually a minimum of $40). After filing the divorce, you have 120 days in which to serve your spouse. If your spouse is willing, they can sign a document accepting service and setting forth the date the 20 days will start to run.
STEP FOUR: YOUR SPOUSE WILL ANSWER THE DIVORCE AND POTENTIALLY COUNTER-PETITION
Within 20 days from the date they are served, your spouse should file an “Answer” to the allegations contained in your Petition for Dissolution of Marriage, and they will either: admit, deny or claim they are without knowledge with regard to each allegation in your Petition. In addition they can also file affirmative defenses.
In addition to filing an “Answer,” your spouse may also file a counter-petition for dissolution of marriage, setting out in general terms what they are asking for in the divorce. The Clerk does charge a fee for filing a Counter-Petition. If a Counter-Petition is filed, then you will have 20 days to file your “Answer” and any affirmative defenses. If an Answer is not timely filed, the party required to Answer is in default and a motion for default must be filed with the clerk seeking to have all allegations in the Petition or Counter-Petition deemed admitted.
STEP FIVE: MANDATORY DISCLOSURE, INCLUDING A FINANCIAL AFFIDAVIT MUST BE FILED
Both parties have 45 days from the date of service of the Petition for Dissolution of Marriage to file their financial affidavit (FA) and Notice of Compliance with Mandatory Disclosure. The financial affidavit sets forth each party’s income, expenses and lists all assets and debts. If you cannot complete the FA and/or gather all the documents required for mandatory disclosure, you can ask the court to extend the time to file. Other discovery may also be requested by either side in their discretion. The financial affidavit and mandatory disclosure are required, although there are certain situations in which they can be waived.
STEP SIX: TEMPORARY RELIEF, MEDIATION AND POTENTIALLY A HEARING ON TEMPORARY RELIEF
Because the divorce process is not always a quick process, the courts permit either party to request temporary relief. This means that pending a final hearing, upon the request of a party, the court will order temporary child support to be paid, will put in place a temporary timesharing schedule, may order temporary alimony and may order temporary attorney’s fees if one party can’t afford to pay their attorney and the other person has the ability to pay.
If either party has requested temporary relief of any kind, a mediation will normally take place in an effort to resolve these temporary issues. Depositions may also be taken for the purposes of temporary relief and either party can request additional documents to assist with proving their case.
If all temporary issues are not resolved, the matter is set for hearing and the judge will decide the issue. These hearings are normally very short as the Court usually allots only 30 minutes for temporary issues.
STEP SEVEN: PREPARE FOR TRIAL AND TELL THE COURT YOU ARE READY FOR TRIAL
Prior to and after temporary relief your attorney is most likely preparing for trial. This involves collecting evidence to prove the allegations in your Petition for Dissolution or to refute the allegations in the Counter-Petition. For example, if you asked for alimony you will need to present evidence on the various alimony factors, including your need for alimony and the other party’s ability to pay alimony. Preparing for trial may involve depositions, issuing subpoenas, inspecting property, and hiring appropriate experts.
Any time after the case is “at issue” (there has been a petition and answer filed), either party can move the court to set the case for trial. Each court’s docket is different and frequently trials are set several months after a party moves the case for trial. Your attorney will take into consideration many different factors to determine the right time move the court to set the case for trial.
STEP EIGHT: SETTLEMENT DISCUSSIONS AND MEDIATION PRIOR TO TRIAL
Prior to going to trial, both parties are required to attend mediation to attempt to settle all or some of the issues slated to be tried. If mediation is successful, an agreement will be drafted and presented to the court for ratification.
However, a mediation is not necessary to settle your case. A good attorney will be attempting to settle your case, or certain issues in your case, throughout the divorce process in an effort to save you time, money and heartache.
STEP NINE: WITNESS LIST, EXHIBIT LIST AND JOINT PRETRIAL STIPULATION
Prior to trial, the Court will require both sides to disclose to the other side the witnesses they intend to call at trial (lay and expert witnesses), and disclose the exhibits (evidence) they intend to use at trial. The Court also will require both attorneys to jointly prepare a statement setting forth the issues to be tried and any undisputed facts, and other information the judge will need to render a judgment.
STEP TEN: BENCH TRIAL (THERE ARE NO JURY TRIALS IN FLORIDA)
If at the end of this process there are still unresolved issues, both parties will present evidence to the judge as to why the judge should grant the relief they are requesting. Often times both parties will testify at the trial. Children are not permitted to testify at trial absent court permission. The judge will also hear argument from each attorney on the issues and may permit the parties to file memoranda of law. After considering all of the evidence and arguments presented, the court will decide each issue and will either announce its decision from the bench and require one of the attorneys to draft a final judgment for their review or take the matter under advisement and later render a written decision.