What to do, when served a Petition for Florida Divorce?
Published November 8, 2010After you are served with a petition or counter petition for divorce read it! Read each sentence in the petition or counter petition. As you read the petition or counter petition notice the petition or counter petition has SECTIONS and in each section there are sentences and parts that are chosen and others not checked or chosen by the other party. You need to read the petition or counter claim because you should file an answer to the petition twenty (20) days after you are served with the petition or counter petition. As you read the petition or counter petition, read it thinking about whether you agree to that part of the section because it is true, disagree because it is not true or don’t know if it is true or not true. You want to do the same for each numbered part of each Section that the other party chose in their petition or counter petition. You are answering only the parts of each section of the petition or counter petition chosen by the other party. Your answer will help the court and the other party understand if you agree, disagree or don’t know about the claims made in the petition or counter petition. If you don’t file an answer the other party may file for a default judgment. Letting the other party get a defaulted against you can cause you to lose your case. The good thing about an answer is there are only three possible responses you can give. 1. In the answer you admit or agree to the parts of the petition or counter petition that are true. 2. Deny or disagree with the parts of the petition or counter petition that are not true. 3. If you don’t know if it is true or not true, then say I don’t know. When you say I don’t know it is treated like you are disagreeing and the other party must prove it. So now your saying to yourself, I’ve read the petition or counter petition. I can identify what is true, false or I don’t know. How do I record what I know on to the Answer? It’s not complicate. Take out the Answer form and take a good look at it make sure you have your copy of the petition or counter petition next to it so you can be sure you have the correct answer by identifying each section and part you agree, disagree or don’t know if you agree or disagree.
When do I use a Florida Certificate of Service?
Published November 8, 2010Except for the initial original or supplemental petitions, anytime you file additional pleadings or motions in your case, you must provide a copy to the other party and include a certificate of service. The reason why a certificate of service isn’t included on the initial original petition or supplemental petition is each of these documents is filed with the clerk and serve by the sheriff. After delivering a copy of the original petition or supplemental petition, the sheriff will file a return of service certificate. In the return of service, the sheriff say the document was delivered to the other party, how, where, and when. So the certificate of service is used by the litigants for all subsequent filings.
A certificate of service is the title given to that part of almost all legal documents and filed with the court. The certificate of service is your promise that a true copy of the document you filed with the court was sent to the person you are suing or is suing you. If you do not include a certificate of service with all documents filed with the court, your document may be returned as an ex parte communication-meaning you didn’t provide the other side with a copy of the legal document you filed. Both sides, all sides of a suit must exchange and send copies of the documents filed with the court to the opposite side and the way they tell the court that the document was sent to the other side is by a certificate of service.
Typically a certificate of service must state that you certify the document was sent via U.S. Mail is the most usual means of sending, and the name and address of the person to whom the document was sent. The date the document was sent to the other party.
The idea behind the certificate of service is to make sure each side of the law suit exchange the legal documents they file in the court with each other. This way the opposite sides of a suit know what is filed and can determine if they need to respond, set a hearing or something else. The certificate of service is the part of the legal document you file with the court that lets the court know you complied with your duty to provide a copy to the other litigant(s). For more information, see the instructions for Certificate of Service (General), Florida Supreme Court Approved Family Law Form 12.914.
What if I don’t know where my spouse lives?
Published November 8, 2010
If you absolutely do not know where the other party to your case lives or if the other party resides in another state, you may be able to use constructive service. However, if constructive service is used, other than granting a divorce, the court may only grant limited relief. For more information on constructive service, see Notice of Action for Dissolution of Marriage, Florida Supreme Court Approved Family Law Form 12.913(a), and Affidavit of Diligent Search and Inquiry, Florida Family Law Rules of Procedure Form 12.913(b). Additionally, if the other party is in the military service of the United States, additional steps for service may be required. See, for example, Memorandum for Certificate of Military Service, Florida Supreme Court Approved Family Law Form 12.912(a). In sum, the law regarding constructive service and service on an individual in the military service is very complex and you may wish to consult an attorney regarding these issues.
What Does Service or Process of Service mean?
Published November 8, 2010
Service. Is a term used to describe the delivery of a legal documents and papers between parties in a lawsuit. For example, when one party files a petition, motion, pleading, or any paper sent to the judge or court, the other party must be “served” with a copy of the same petition, motion, pleading or paper just filed. This makes sure that the other party is given proper notice of the pending action(s) and any scheduled hearings. Service or deliveries of legal documents, like a motion, are vitally important. For example, your spouse filed a “Motion to Remove You From the Marital Home” but doesn’t serve or deliver a copy of the motion to you. You don’t know about your spouse’s motion and are denied the opportunity to tell the judge your side. It would be unfair to you! So the court requires that all documents filed with the court or sent to the judge also be served on the other party. Failure to send the other party to the law suit a copy of everything filed with the court is called an “ex Parte” communication, which the courts uniformly do not tolerate. A definition for “ex parte” is provided in the Divorce 101’s89 Glossary. There are different types of service or delivery of your legal document. What type of service is required depends upon the document you are filing with the court. Personal service (almost literally means the document will be placed in the hands of the other party). Personal service is required of the petition and summons on the respondent by a deputy sheriff or private process server of all original petitions and supplemental petitions, unless the law permits constructive service. Personal service may also be required in other actions by some judges. After initial service of the original or supplemental petition and summons by a deputy sheriff or private process server, service of most motions and other documents or papers filed in the case generally may be made by regular U.S. mail or hand delivery. Sometimes, service by certified mail is required so you have proof the other party actually received the papers. The website has a listing of documents which must be served by certified mail. If an attorney represents the other party, you should serve the attorney and send a copy to the other party, except for original or supplemental petitions, which must
What Financial information do I need to disclose?
Published November 8, 2010What Financial information do I need to disclose? Or what is Mandatory Disclosure?
Mandatory disclosure… Rule 12.285, Florida Family Law Rules of Procedure, requires each party in dissolution of marriage to exchange certain financial information and documents, and file a Family Law Financial Affidavit. There are two types of financial affidavits; one is used if your income is less then $50,000.00 per year and another, if your income is more then $50,000.00. So what financial information and documents must be exchanged, if you have them: Failure to make this required financial disclosure within the time required by the Florida Family Law Rules of Procedure may allow the court to dismiss the case or to refuse to consider the pleadings of the party failing to comply. So what are the critical time limits? 1. A petitioner must file the financial affidavit within days of filing the divorce and the petitioner must provide the rest of the mandatory financial disclosure within days of filing the divorce. 2. The timetable is different for a respondent. The respondent must file the financial affidavit within days of xxxxxxxxx and respondent must provide the rest of the mandatory financial disclosure within days of xxxxxxxx. To make it clear, each party to a divorce must file his or her financial affidavit. The only exception is in a simplified divorce. After you file your financial affidavit and exchange the mandatory financial disclosure you file The Certificate of Compliance with Mandatory Disclosure. This form lists all the types of financial disclosure that you must give to the other party. When you fill out the form all you need to do is check the box in front of the listed type of financial information you are giving to the other party. If you don’t have a type of financial document then you do not check that type of financial information. You only give the other party what you have. You many need to go to the bank or order some of the documents like tax returns or credit card statements. If you were never an owner of a corporation you can’t provide what never existed so you will not check the line for that type of financial disclosure. For more information about mandatory disclosure read rule 12.285, Florida Family Law Rules of Procedure, and Florida Divorce 101’s discussion of the Certificate of Compliance with Mandatory Disclosure, Family Law Form 12.932 in Frequently Asked Questions: Certificate of Compliance with Mandatory Disclosure.
What are Marital Settlement Agreements?
Published November 8, 2010What are Marital Settlement Agreements and What do I do with It?
A Florida “Marital Settlement Agreement’ is a signed, written agreement between you and your spouse. It should contain your agreement on all the decisions you have made about the division of your property and debts, spousal support, time sharing, child support, name change or any special issues to your divorce. There are different Florida Marital Settlement Agreement forms from which you can choose, or you can create your own agreement. But the forms are very good and contain the most likely subjects you will need to settle and possible settlement options. So even if you write your own settlement, use the Florida Marital Settlement Agreements as a model. Whatever form you choose, the marital settlement agreement must be in writing and signed by the parties and notarized or signed before a deputy clerk of the court. If the marital settlement agreement settles all issues and claims then set a final hearing before the judge. You will need to prepare a final judgment and bring your original settlement agreement to the final hearing. You will need to identify the marital settlement agreement for the judge, and enter the original marital settlement agreement into evidence. The judge will want to know if you want the marital settlement agreement made part of the final judgment and it should be made part of the final judgment. In fact, the final judgment should make reference to the marital settlement agreement. Remember you will be bound to do or not do what you agreed to in the marital settlement agreement. Most marital settlement agreements are enforcible and failure to do somethings you promised in the marital settlement agreement may put you in contempt of court. What if we can’t settle all the issues we have? In Florida settlements do not have to resolve all of your differences to be valid and enforcible. Those issues on which you are unable to agree upon will be considered contested. The remaining issues and claims will be heard by the judge and ruled upon after trial in the Final Judgment. So those issue which you resolve by agreement can be settled and no longer contested and those that can not be settled are contested and remain for the judge to decide.
What do I do if my spouse does not answer?
Published November 8, 2010
What do I do if my spouse does not answer or send any papers into the clerk concerning the Petition or Counter Petition for Divorce?
You should move for a Default Judgment. After being served with a petition or counterpetition, the other party has 20 days to file a response, usually an answer but it can be almost any response. But if a written response of any kind isn’t filed by the other party to the petition or counter petition, then you should file a Motion for Default Judgment. Take a look at Form 12.922(a) to get a good idea of what the motion for default should look like and what the motion for default should say. After you draft and type up the motion for default judgment file it with the clerk end a copy to the other party. You can proceed with your case and set a final hearing, even if the other party fails to cooperate. At the hearing for default judgment the judge will make a decision. For more specific information you need to read Florida Family Law Rules of Procedure 12.080(c). It is important that you read the rule so you know how to proceed with your Default Motion. Example: The petitioner files the petition for dissolution and it is served upon the respondent. You begin to count twenty (20) days from the day after the day of service. You are wait thirty (30) days and nothing is filed with the clerk of the court (remember every paper filed with the clerk or judge MUST be copied to the other party). You would be well within your right to file a motion for default judgment. At the hearing the judge will check the court file and if there isn’t a response or paper filed by the other party the court should grant the motion for default judgment and enter an order on the default in your favor. At its heart a motion for default judgment is the claim the other side has a dead line to file a response and chose not to file a response as required by rule. Answer to the question above is file a motion for default judgment and set it for hearing and let the judge decide if you are entitled to a judgment because the other side failed to answer.