“What can I expect in my family court case?” is one of the most frequent questions we receive at McCart & Tesmer, so we have put together a list of basics that you may incur during a family law case litigation. Feel free to refer to this blog as you navigate the family law case from the initial filing through trial.
- Filing a Petition (Opening the case)
A family law case, whether a divorce, paternity action, or temporary custody, is initiated by filing a Petition. A Petition notifies the Court that the case has been started and the issues which the Petitioner, the individual filing the case, is requesting the Court to resolve. Those requests typically include timesharing schedules, parental responsibility and decision-making authority for any children, child support, alimony, marital home possession, and property division.
Note: In 2008, Florida replaced the terms “custody” and “visitation” with “parental responsibility” and “timesharing/parenting time” (respectively). Parents must use the new terms in paperwork, hearings, and trials.
Once the Petition is filed and processed by the Clerk of Court, the Petitioner must serve the Petition on the other parties, known as the Respondent. Service does not mean hand-delivery or sending the Petition through the U.S. Mail; instead, service means delivery of the Petition by a Sheriff or private process server who will provide proof of the service to the Court.
- Responding to the Case
After the Petition is properly served on the Respondent, the Respondent is given 20 calendar days to file a Response to the Petition. A Response typically includes answering each statement in the Petition with an admit or denial and may consist of the Respondent’s own Counter Petition asking the court to resolve issues in the Respondent’s favor. Just as above, the Counter Petition is served on the Petitioner, who will have 20 days to submit a response to said Counter Petition.
If a party to a case fails to answer a Petition within 20 days of service, a Default Judgment may be entered against the non-responding party. A default judgment results in the court generally granting the responsive party whatever they asked for in their Petition. Temporary Relief
Discovery is the process by which the two sides exchange information. Forms of discovery include requests to produce documents, interrogatories, requests of admissions, subpoenas, and depositions. In family law cases, in particular, discovery begins almost immediately in the form of Mandatory Disclosure. In Florida, Mandatory Disclosure is a required and mandatory exchange of financial documents between the parties, including tax returns, bank statements, proof of income, debts, health insurance, and cryptocurrencies. The purpose of Mandatory Disclosure is to provide each party with a fair and frank picture of the other party’s financial situation to assist with dividing assets and liabilities and calculate child support and alimony.
One of the highest contributions to attorney fees and costs in family law cases concern discovery. Clients can reduce attorney fees and assist their attorney by immediately gathering the requested discovery and complying with deadlines. Missing documents and responses and past-due deadlines result in your attorney, opposing counsel, and potentially the judge admonishing you for failing to comply.
In addition to discovery, your attorney may request that you start gathering information that may be discoverable in the future or assist in preparation for trial, such as:
- Names and contact information of witnesses with personal and direct knowledge of pending issues or events that will be brought before the Judge;
- Reports and records for health, education, and property registrations.
- Personal log of events and interactions with the other party you can refer to when memory fails
Parties in a family law case may settle the issues between them at any point along the course of the case. However, any issues that have not been resolved between the parties will be presented to the Judge at a trial. The Judge will hear the facts presented by each party, judge the credibility of testimony and evidence, and apply the law to the evidence presented.
At trial, the parties present witness testimony and evidence to the court to articulate their view of their case. The judge may ask some questions of both parties. In the end, both attorneys will give closing statements to the judge explaining the facts as presented, applying them to the law, and arguing for their party’s particular outcome. Assist your attorney in trial preparation by reviewing the judge’s policies for their courtroom, the Family Law Rules of Procedure, and expectations for courtroom behavior. Failure to follow the foregoing could negatively impact your credibility and case.
There is an inherent risk of taking your case to trial; judges are human beings, and each judge may interpret the evidence differently, which would affect the application of the law. The rule of thumb is this: if the parties can make an agreement that neither loves but can live with, do it because, at trial, the judge may likely make an agreement that nobody likes.
Imagine you and your family are a unique puzzle with 100 pieces making up your family’s picture. Now imagine a judge deciding the fate of your family on only 10 pieces of that puzzle; the other 90 pieces cannot come into court because they may not be relevant, admissible by the court, or forgotten. The risk of going to family court is akin to asking the Judge to decide in your favor based on 10 of 100 pieces of the puzzle. That is a risk that you should not take lightly.
Suppose you are faced with a decision to proceed to trial. In that case, a trial takes away a party’s ability to control the case’s outcome, particularly for those parties who are attending trial without an experienced attorney who is fluent in the law, relevant cases, judge’s preference, and court decorum.
The litigation process can be confusing to anyone with professional experience with the court system, which is why we stress the importance of working with experienced attorneys. If you are considering representing yourself, please read our blog about the pitfalls of pro se (self-representation) and how having a lawyer can save you money in the long run: https://mccarttesmer.com/ways-your-diy-divorce-can-haunt-you-later.
If you are considering a family law case such as divorce, child support, or another case of domestic nature, please contact the experienced attorneys at McCart & Tesmer at https://mccarttesmer.com/contact-us/ or call 813-498-2757 for a free consultation.