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Procedure

Disqualification of a lawyer in a Florida family law case

Disqualification of a lawyer in a Florida family law case

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.

Charging lien in Florida divorce cannot be overly broad

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).

Florida family law procedure: Required language in notice of hearing on motion for contempt

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).

Who pays attorneys' fees and costs in a Florida family law case?

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.

Transfer and closure of Florida divorce case without notice violates due process

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).

Florida family law procedure: clerk can't require filing fee as a prerequisite to accepting a notice of appeal

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.

It may cost you if you do not hire a court reporter for your Florida divorce

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.

Florida family law appeals: A final judgment may not be "final" for purposes of appeal

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.

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?