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Procedure

Scrivener's error does not divest Florida family court of jurisdiction

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.

Requirements for requesting a psychological evaluation in a Florida child custody case

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.

Insufficient notice for a hearing may result in reversal of Florida family court order

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.

Non-verbal gestures and comments about litigant behavior held to be inadequate to disqualify Florida divorce judge

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.

Florida family law procedure: transfer is appropriate when there is a more convenient forum

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.

Florida family law procedure: Contempt upheld despite due process claims

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.

Reversal of a $100,000 sanction in a Florida family law case

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).

Transfer of venue in Florida child support and child custody cases

Posted by Nydia Streets of Streets Law in Florida Law Procedure

What happens if parties move to a different state while a child support or child custody case is pending in Florida? In the case Ivko v. Ger, 233 So.3d 1269, this issue came up and the trial court’s decision to transfer a paternity case from Florida to Pennsylvania caused the mother to file an appeal.

Florida family law procedure: When technical errors derail progress

Posted by Nydia Streets of Streets Law in Florida Family Law Procedure

Sometimes rulings are made in court which may not make common sense but are made to be consistent with established procedure. These types of rulings may frustrate parties who have spent years and a lot of money litigating a case only to find that a technical error has derailed progress.

Proper application of a motion for contempt in Florida family law cases

Posted by Nydia Streets of Streets Law in Florida Family Law Procedure

When a party fails to follow the terms of a court order, what remedies are available to the injured party? It depends on what terms are being violated - if the terms deal with support, generally there are different enforcement options available than those that correspond with violation of non-support matters.

Florida family law procedure: Hearings that turn into settlement conferences

Posted by Nydia Streets of Streets Law in Florida Family Law Procedure

Sometimes Florida family law hearings can turn into de facto settlement conferences wherein the parties discuss their differences and come to an agreement in open court. So long as all parties agree, the agreement reached will be binding. Such was the case in the recently published appellate opinion State v. De La Begassiere, 3D18-296 (Fla. 3d DCA 2018).

Can a judge be disqualified from a Florida family law case?

Posted by Nydia Streets of Streets Law in Florida Family Law Procedure

Florida family law litigation rarely involves jury trials. This means cases are decided solely by the judge presiding over the case who hears testimony and reviews evidence. When a party believes the judge is biased or otherwise will not decide a case fairly, what can be done?

Can your Florida homestead be affected if you do not pay your litigation bills?

Posted by Nydia Streets of Streets Law in Florida Child Custody

The case Seligsohn v. Seligsohn, 4D17-2411 (Fla. 4th DCA 2018) provides an example of a case in which many issues can explode from one final judgment. In this matter, the former wife appealed the following issues meriting discussion: (1) the court’s decision to force a sale of homesteaded property to satisfy debt owed to a guardian ad litem; (2) the court’s decision to award ultimate decision making authority to the former husband over the parties’ children; and (3) the court’s order for the wife to attend parenting courses.

The case of a forged signature in a Florida divorce

Posted by Nydia Streets of Streets Law in Florida Family Law Procedure

A recent appellate case explores an interesting tale of divorce, forgery, reconciliation and then divorce again. On October 31, 2018, the Florida First District Court of Appeal published the case Holt v. Holt, 1D17-3092 (Fla. 1st DCA 2018) in which the husband sought to overturn a 2010 order that he alleged the wife obtained by forging his signature.

Procedure: Standard for awarding attorneys' fees for bad faith conduct

Posted by Nydia Streets of Streets Law in Florida Child Custody

Sometimes even after a Florida parenting plan is entered, problems can arise when the parties disagree as to the interpretation of certain provisions of the plan. Such was the case in Greene v. Greene, 1D17-2120 (Fla. 1st DCA 2018) where the disagreement escalated to the point that the police were called multiple times. In some cases, the court can award attorneys’ fees to the offending party, but a certain standard must be met before doing so.

Florida family law procedure: Enforcing out-of-state contempt orders

Posted by Nydia Streets of Streets Law in Florida Family Law Procedure

The Full Faith and Credit Clause requires that a Florida court recognize another state's orders with some exceptions. In the case New v. Bennett, 1D17-3196 (Fla. 1st DCA 2018), the appellate court considered the appeal of a trial court's order denying a mother's petition to domesticate an out-of-state order that held her ex in contempt and ordered him to be incarcerated. 

Procedure: Discovery cannot be compelled until it is determined to be relevant

Posted by Nydia Streets of Streets Law in Florida Family Law Procedure

Discovery is often dreaded by parties involved in a Florida family law case, but it is a necessary part of the procedure that will lead to a trial. Discovery is the process in which each party exchanges certain documents and information to prove his/her side of the case. For example, bank statements, pay stubs and other financial documents may be exchanged as part of discovery to prove a party's ability to pay child support. 

Florida family law procedure: No contempt without notice

Posted by Nydia Streets of Streets Law in Florida Family Law Procedure

Can a party be held in contempt if the party never received notice that a contempt complaint was pending against him or her? A recent appellate case reinforces the right of litigants to due process - that is, the right of each party to be heard and to receive notice of proceedings against him/her. 

Miami family law procedure: the right to present evidence

Posted by Nydia Streets of Streets Law in Florida Family Law Procedure

Once again, we see due process in action in Florida family law in the case Walters v. Petgrave, 4D18-446 (Fla. 4th DCA 2018). When the trial court in this case denied the mother the opportunity to present her case and then ruled based on the mother not presenting evidence, she appealed the trial court's final judgment.