A divorce case is not easy. It just isn’t. Many people think that if everyone agrees with everything, then that is a piece of cake and it is all over. I get half of my stuff, she gets half of her stuff, we will split the children’s time and I will pay her a certain amount of child support and we are done! Wrong. Judges have to agree on the agreement that you have made and there are many hoops that have to be jumped through for a divorce to happen. It boggles my mind how often I have seen somebody come in years later after they have done their own divorce and ask me to try to fix something that is outrageous. Especially if the parties have a little bit of money, you really need to get an attorney.
For example, the other day a person came in to try to get us to fix something dealing with alimony. The person earned several hundred thousand dollars a year at the time of the original divorce about 10 years ago. To save money he and his wife did the paperwork themselves. Because the guy is not an attorney, he did not know that he was not supposed to put the word “non-modifiable” in front of the permanent alimony award he agreed to give her. Now he does not earn as much money and he cannot get out of the alimony. Terrible. Some of the issues that you have to take care of regarding a divorce or any other family law matter like a modification of child support or a modification of custody, are what is called “discovery”.
Discovery basically means the exchanging of financial information and other information that doesn’t have to be financial just to get the facts to make sure that the case is handled completely fair. Florida does not allow sneakiness. The biggest rule with regard to financial discovery in a divorce case is Rule 12.285 of the Family Law Rules of Procedure. In this rule, a Financial Affidavit must be done and certain other things such as bank statements. There are also timing issues that deal with this. For example, you have to file your Financial Affidavit and other documents within a certain timeframe of other pleadings. There are other disclosures involved with that rule as well, credit card statements, loan applications, leases, tax returns, all kinds of things where the Court and the opposing party can determine how much you earn and how much and many assets you have. There are also different types of discovery such as mental exams. A person can’t just ask for a psychological exam willy nilly. There has to be a reason that the opposing party is asking for it or a Court usually will not grant it. Think about it, how often in a divorce would a husband or a wife want to the other side to get a mental exam of the other.
Another form of discovery is a child custody evaluation. These all fall under Statute 61.20 and Florida Family Law Rule of Procedure 12.364. These evaluations are really used to help the Court in determining custody or a timesharing arrangement. These evaluators are usually experts that really handle the children with care. Obviously, we want the children to deal with as little conflict as possible. Regarding admissibility of a custody evaluation, this is tricky. You should always have the person who actually did the evaluation there to testify to the Court or you could get shredded on hearsay grounds. Many times, however, the attorneys will agree ahead of time to just simply allow the custody evaluation in. In more contentious cases, though, you need to be prepared for anything.
Another great tool for the discovery is a Request for Admission. You have to be real careful with this. First of all the Request for Admissions usually is just a simple yes or no answer. If you do not answer this Request for Admission within the allotted amount of time it is deemed denied so you have to answer these things. A Request for Admission is a great tool to use for statements of opinion or fact or application of law to fact or the genuineness of documents. A Request for Admission is outstanding to use to authenticate things. There is a timeframe associated with a Request for Admission so pay attention!
Another form of discovery is called a Request for Production. This is governed by Florida Rule of Civil Procedure 1.350 and 12.350 of the Family Law Rules. A Request for Production is basically asking for a bunch of stuff. Real technical, right? This tool is used to get additional documents and things of that nature. For example you may use a Request for Production to get a receipt or something like that that was not in the original disclosure requirements of Rule 12.285. You can use this to a non-party as well although in both cases a person can object and a hearing must be held or a deposition must be held. If a person does not comply with any of these discovery requests on anything previously mentioned in this blog, a Judge can sanction you. A sanction can be attorney’s fees or pleadings stricken or any number of things to get you to comply with Court Orders and discovery requests. These aren’t things to be trifled with.
Another tool of discovery is a production of documents and things without deposition. A party can seek production from a non-party without the necessity of taking a deposition. This falls under Florida Rule of Civil Procedure 1.351 and 12.351 of the Family Law Rules. The parties seeking documents must serve the other party with a Notice of Intent to seek third party production 10 days before any subpoena is to be issued if by delivery, or 15 days if by mail. The Notice of Production is not to be sent to the third party.
Another tool is Interrogatories. Interrogatories are governed generally by Florida Rule of Civil Procedure 1.340 and Rule 12.340 of the Family Law Rules. Initial Interrogatories in original and enforcement actions shall be those set forth in Family Law Form 12.930(b). Interrogatories are great information gatherers. You can use the initial Interrogatories as previously stated and then follow up with some more. Failure to answer Interrogatories, again, can cause sanctions and really get in trouble with the Court. Probably the best tool of discovery that I like are depositions. A deposition should be taken in almost every case. People think that that is a money waster or a way attorneys use just to get money or bill extra hours, but it is simply not true. A deposition makes the quality of the case go up. You want to take depositions to learn all of the secrets and anything else the other side is hiding. You do not want to go to a hearing and the hearing be the first time you have ever directly asked questions of the opposing party.
There are time constraints with depositions too and when you can take them and how you can object also. There is also different ways to get documents to be delivered during a deposition such as a Subpoena Duces Tecum. A deposition can also be taken over the telephone or by videotape depending on the circumstances and the rules. Objections are very strictly minimalized during a deposition. In discovery, a party may discover any matter, not privileged, that is relevant to the subject matter of the pending action as framed by the pleadings. A party may seek to discover documents and tangible things otherwise discoverable which were prepared in anticipation of litigation by another party or that party’s representative, only upon a showing that the party seeking discovery has the need for the materials in the preparation of the case, and is unable without undue hardship to obtain the substantial equivalent of the materials by other means. A party can get a Protective Order to guard themselves in a discovery matter.
For good cause, a party or person from whom discovery is sought may move the Court for a Protective Order to protect the party or person from annoyance, embarrassment, oppression, or undue burden or expense. Again there are timeframes associated with this. There are times when you had lost the ability to file for a Protective Order because of a missed deadline. There are privileges that are not discoverable and they are found in Florida Statute 90.501 through 90.5055. Examples are: journalist – source, attorney – client, psychotherapist – patient, sexual assault counselor – victim, domestic violence advocate – victim, husband – wife, clergyman – person seeking spiritual guidance and accountant – client. A person may move for a summary judgment any time after 20 days from commencement of the action, or after the adverse party has filed a Motion for Summary Judgment. The adverse party against whom relief is sought may move for summary judgment at any time.
Kenny Leigh & Associates is a law firm that exclusively represents men in the area of family law in the State of Florida. We have offices all across the State of Florida that can help you. Please go to our website at www.divorcemenonly.com if you have any further questions.
