A contested divorce is a case that is litigated in family law court when the parties cannot agree on issues such as property divsision, timesharing, alimony, child support, and attorney’s fees. Litigation occurs in different stages. Here is a general overview of the 10 different stages that may be involved in your contested divorce:
1. Filing or Responding to a Divorce Proceeding
The party filing for divorce (“Petitioner”) files with the Clerk of Court a Petition to the Dissolution of Marriage. This is the document that request that the Court take jurisdiction over the parties and issues involved in the divorce, which could include, for example, custody, property division, alimony, child support, and attorney’s fees. The Petition must then be served on the other party by a process server.
Once the other party (“Respondent”) has been served with the Petition. He or she has 20 days to file a response, which also known as an Answer. In the Answer, the responding party will either admit or deny the allegations raised in the Petition. It is also common for the responding party to file what is known as a Counter-Petition, which is essentially filing a counter-suit for divorce, requesting specific relief.
2. Standing Pretrial Order
After the Petition is filed and the case is opened, the Judge assigned to the case will issue what is knowns as a Standing Pre-Trial Order or “status quo order.” This is standard for most circuit courts in Florida. Escambia and Santa Rosa County have very similar Standing Pre-Trial Orders. The Order governs how the parties are to conduct themselves while the divorce is ongoing. It instructs the parties to not dissipate or transfer assets and requires the parties to maintain the status quo during the proceedings. This includes, for example, requiring that the party who customarily paid for insurance benefits at the time of filing continues to do so. If there are minor children involved, the Order requires that the parties exercise 50/50 timesharing, unless they can agree otherwise.
3. Mandatory Disclosure
Florida Courts require that both parties comply with what is known as mandatory disclosure. Mandatory disclosure is the process by which the parties exchange specific financial information with the other, which includes a Financial Affidavit, disclosing all expenses, assets, and debts. The parties have 45 days from the date of service of the Petition to provide the other party with mandatory disclosure.
In addition to mandatory disclosure, the parties may conduct discovery. Discovery is the process by which the attorneys gather information from the other side to evaluate and prepare the case. Discovery can be written questions (interrogatories), request for production of documents, request for admissions, third party subpoenas for documents, or depositions. The discovery process can occur in different stages all the way up until trial, if necessary.
Some but not all divorce proceedings require some type of appraisal. This could be an appraisal of the any real property owned by the parties, such as the marital home, or other tangible property owned by the parties. In some cases, a business appraisal is needed to determine the value of a business interest owned by one or both parties.
6. Temporary Hearing
The Judge can enter temporary orders on issues of timesharing/parental responsibility, alimony, child support, attorney’s fees and costs, and exclusive use and possession of the marital home. The Court may also in some cases circumstances enter an interim partial equitable distribution order. A temporary order is only in effect until modified or the final order is entered. Temporary relief will in most circumstances require a hearing, unless the parties can agree. A temporary hearing is an evidentiary hearing where the parties will have the opportunity to present evidence to the Judge on type of temporary relief requested.
Mediation is an informal and confidential settlement conference between the parties and their divorce attorneys. Mediation is conducted before a neutral third party known as a mediator. It is an opportunity to resolve the case without going to court, which is one of the many benefits of mediation. The court will in most circumstances require that the parties attend mediation before it will set the case for a final hearing (trial). If the parties can reach an agreement at mediation, the parties will sign a mediation settlement agreement. The mediator will file the agreement with the court and the Judge will then enter a Final Judgment of Dissolution of Marriage. Once the Final Judgment is entered, the parties are officially divorced.
8. Trial Preparation
If the case does not resolve at mediation, the case will proceed to trial. Trial preparation is time consuming for the divorce attorney. Your attorney will conduct additional discovery, hire experts (if necessary), prepare witnesses and other evidence to be introduced at trial. It is important that you cooperate and work closely with your attorney during this time, as the attorney depends on you to provide documents and other information. You attorney cannot effectively tell your story without your involvement and input. There are also deadlines associated with disclosing information to the other party.
Trial is also known as a final hearing. The final hearing will be heard by a Judge, as opposed to a jury. The Judge has a lot of discretion in the decision-making process and will decide all issues in your case. In so doing, the Judge will hear and consider the evidence and testimony, including the credibility of the witnesses. Trial is serious and requires a lot of preparation. It is your single opportunity to present your case and tell your story in hopes of getting the outcome you want.
One or both parties to the divorce can appeal the outcome in the trial court to a Florida District Court of Appeal, which is the court that is higher than the trial court (i.e., the family law judge). A very small amount of cases ends up on appeal. It is very expensive and difficult to appeal a final judgment. As a result, deciding whether to appeal involves a cost-benefit analysis, which might not always favor an appeal. On appeal, the District Court is limited to the evidence presented to the trial court. As a result, it is critical you have an experienced divorce attorney to handle your trial – one that knows how to make a proper record and preserve all issues for appeal.
At McKenzie Law Firm, our divorce attorneys will guide you through the divorce process and give you the tools you need to tell your story and move forward with your life.