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 Outline
The
following information is a general outline of the divorce process
and the general sequence of events in a divorce action.
This document is intended to answer general questions and concerns.
It does not, however, contain legal advice or answers for the issues
in each individual case.
Beginning the Action
Optional Temporary Orders
Financial Statements, Negotiations and Discovery
Trial
Enforcing Orders
Alternatives
BEGINNING
THE ACTION
The divorce action is begun with the filing and service of the
Summons and Petition for Dissolution of Marriage in your county of
residence. If you are the petitioner, your spouse will need to be
served with these pleadings. This may be accomplished by (1) your
spouse receiving the papers in the office of his or her attorney, or
(2) he or she may be served by a process server.
If you are the respondent (i.e., you have been served with papers),
you will need to answer the Petition for Dissolution of Marriage.
The answer is a document called the Answer and will state your
position as to each of the claims made in the petition. You may also
take this opportunity to initiate your own Counterclaim for
Dissolution of Marriage which will be filed in addition to the
Answer.
OPTIONAL TEMPORARY ORDERS
If it is necessary to have the court set the temporary terms and
conditions regarding children or finances the parties are to follow
during the pendency of the divorce action, then a Motion For
Temporary Relief and Request for Hearing on the motion will be filed
concurrently with the Summons and Petition for Dissolution. Once the
hearing date is obtained, a Notice of Hearing on the Motion for
Temporary Relief and the Petitioner's financial affidavit will be
provided to the Respondent. The hearing will occur before the Family
Judge or General Magistrate assigned to your case.
FINANCIAL STATEMENTS, NEGOTIATIONS, AND DISCOVERY
Prior to the hearing for temporary relief you will need a completed
financial affidavit, copies of your wage statements for the previous
three months and federal tax returns for the previous year. The
draft financial statement form should be forwarded to your attorney
as soon as possible after the filing of the action, but no later
than one week before the temporary relief hearing to allow time for
verification, corrections, and typing. Whether or not there is a
temporary relief hearing in your case, the financial disclosure
statement must be prepared within 45 days of the start of the
action.
If you have children and there is no agreement between you and your
spouse as to their custody and placement, then you will be referred
by the court to the Family Mediation Unit for mediation of the
contested issues. If mediation does not result in an agreement, it
will also be necessary to obtain a home study and petition the court
for the appointment of a Guardian Ad Litem (GAL), an attorney
appointed to represent the interests of your children. Most courts
require that each party immediately forward a deposit to the GAL and
that subsequent fees be split by the parties. The GAL will conduct
an investigation and make recommendations as to what would be best
for the children. The GAL participates as any other attorney at all
hearings. The GAL or either parent may also request psychological
evaluations.
It is necessary to gather and verify information concerning the
nature and extent of all the marital assets and debts. To that end,
your attorney will prepare several releases for your signature which
will allow your attorney to obtain financial information with regard
to your savings and checking accounts, stocks, bonds, insurance
policies, as well as, the value of any pension, profit sharing or
other retirement funds or any other assets or debts. Your attorney
will also request this same information from your spouse. When a
complete marital asset list is compiled, your attorney will meet
with you to discuss proposals for the division of the marital
estate.
Although the exchange of marital asset information is generally
cooperative, the rules of family practice require mandatory
disclosure of specific financial documents within 45 days of the
commencement of the filing of the case. If your spouse does not
voluntarily disclose this information, this information may need to
be obtained through a formal discovery process. This would include
the possibility of compelling your spouse through filing of a
motion(s) and hearing(s), deposition of your spouse or other
witnesses (sworn testimony before a court reporter), interrogatories
(questions submitted in writing to be answered in writing, under
oath), or a request for production of documents such as bank
statements, canceled checks, etc. Formal discovery is more
time-consuming and costly than voluntary cooperation.
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TRIAL
A status conference must be scheduled with the judge assigned to
your case after 120 days has lapsed since the respondent was served
with the Summons and Petition. If all issues in your case have been
settled, financial statements have been filed with the court by both
parties and a marital settlement agreement has been signed by both
parties, the status conference date may be used to enter the final
judgment at an uncontested final hearing. If there are still issues
in dispute, the status conference will consist of the attorneys
meeting with the judge to apprize the judge of the status of the
case, obtain orders for any GAL or experts, and to schedule a trial
date. Your case will then be treated as a contested matter and
proceed toward trial. At any time before trial that an agreement is
reached and signed, a prompt final hearing date can generally be
scheduled to finalize your divorce.
ENFORCING ORDERS
If either you or your spouse fail to abide by any court order
including temporary orders made by the Family Judge (for example,
not making a mortgage payment as ordered or not allowing placement
with the children to occur as ordered), the court may be asked to
hold the offending spouse ""in contempt"" and to impose appropriate
sanctions (punishment). You should inform your attorney immediately
if your spouse does not follow through on any orders of the court.
If you retain Rosemarie Roth to represent you in your divorce, she
will strive toward a fair and equitable settlement. The final
decision on all settlement terms, however, is up to you. Though we
provide legal input and advice, this is your divorce. You will not
be granted a divorce until all issues have been resolved and a
marital settlement agreement is signed or until the judge renders a
decision at the end of a trial. Throughout your case, we will
strongly advocate your position and vigorously defend your
interests. However, you should be aware that a trial is an
emotionally rending and expensive experience.
ALTERNATIVES
Mediation and collaborative family law are non-court options that
take the place of foregoing litigation process. Mediation involves
the use of a neutral third-party specially trained to assist parties
in reaching agreements on property and child custody. In a
collaborative family law case the parties are fully represented by
attorneys, but both parties and their attorneys commit to reaching
an agreement through four-way meetings rather than contested
hearings. For more information see our section on Collaborative
Family Practice.
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Rosemarie
founded the
Collaborative Family Lawyers Institute
in Miami in 1999 and serves as the Institute’s first president.
Rosemarie has lectured on Collaborative Law for the Florida Bar, the
Association of Family and Conciliation Courts and for various other
professional associations.
►Contact
Information
Rosemarie S. Roth, Esq.
8525 S.W. 92nd Street Suite B-5 Miami, FL 33156
Phone (305) 596-7303 | Fax (305) 596-1198
e-mail:
rlsroth@aol.com
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