In Florida, as in most states, before a Court can take action on a legal case, the Judge must ensure the other party has, at a minimum, received notice of the lawsuit. Once a lawsuit is filed, the Clerk of Court will issue a summons that directs the party filing the lawsuit to service notice of the lawsuit on the opposing party. That document will specify to the party being sued that they must respond to the lawsuit by filing a written Answer within twenty days of being served. In most cases, the person being sued will respond to the lawsuit by filing a written answer that contests the allegations raised in the lawsuit and the relief being sought. But what happens if the party being sued does nothing and does not file any written answer?
In most cases, if the other party receives notice, and proof of this notice is filed with the Court, usually by way of an affidavit of service provided by a licensed process server, then the Clerk of Court, or the Judge, can enter a Default again that party. Once a default has been entered, all well-plead allegations contained with the petition are deemed true and the Court may proceed to enter a Final Judgment in the case. At that final hearing, the Court can take testimony on the uncontested allegations in the petition and enter a Final Judgment. In family cases specifically, where children are involved, the Court must make factual findings related to the best interests of the children before entering a Final Judgment.
In many cases, after a default, or even a Final Judgment, is entered, the other party may try to enter the case and contest the validity of the Default or Judgment. In that situation, the question becomes, can that party still be heard on the merits of the lawsuit?
In short, the answer, many times, is yes, particularly in family law cases. Upon the filing of a sufficient motion, the Florida Rules of Civil Procedure state that the Court may set aside a default or judgment upon the showing of the one of following: (1) Excusable neglect; (2) Newly discovered evidence; (3) Fraud, misrepresentation, or other misconduct of an adverse party; (4) That the judgment or decree is void; or (5) That the judgment or decree has been satisfied, released, or discharged, or a prior judgment which it is based has been reversed or otherwise vacated, or it is no longer equitable. While the burden to prove these elements is on the party seeking to set aside the default or judgment, the leading case law on these issues say that defaults should be set aside liberally. This follows the general policy that lawsuits should be determined on their merits and not on legal technicalities. If you have any questions about how a default can affect your case, it is important to consult with an experienced attorney right away, as the passage of time can be a factor in the setting aside of a default.
Attorney Russell J. Frank is a partner at CPLS, P.A., and a Florida Supreme Court Certified Family Mediation who focuses his practice areas on family and marital law. Contact Attorney Frank today at firstname.lastname@example.org to discuss any family or marital legal issues you may be experiencing.
The Magna Carta created jury trials, grand juries, and abolished “trial by ordeal” in 1215. A century later, the Black Plague swept all of Europe. Thus “A Jury of Our Peers” has been the hallmark of justice for more than 4 centuries before the founding of these United States. Today, a new worldwide pandemic is challenging our notion of liberty.
A client asked recently whether we were seeing a recession due to the COVID-19 pandemic. Truthfully, many lawyers are busier than ever, though not necessarily with new work. Each court in each different county or circuit has set up specific procedures for handling cases. Some courts, immediately set up video conferencing for hearings; others took a bit more time to explore options. Orange County is in the Ninth Circuit while Seminole County is in the 18th Circuit. Each has a different procedure and both vary in how they handle hearings.
Criminal courts in all areas had largely instituted video conferencing for first appearance years ago, but with a pandemic the larger problem is how to provide safe and secure access for those arrested to meet privately with their attorney. All courts in Florida, the Supreme Court, District Courts of Appeal, Circuit and County Courts have been wrestling with how to assure the safety of the public, how to prevent exposure from those infected, how to protect the rights of those accused of crimes and how to protect the due process to assure fair and just hearings. Jury trials are being scheduled but may not occur until 2021 or later. This places our entire judicial system in peril.
Family attorneys began using Collaborative methods is not always easy, but using a team concept and keeping decisions about your family within your control makes collaboration effective in Central Florida. Using Zoom meetings, for coaches, clients and professionals to work out all the details before even filing can allow a much more controllable process and keep the outcome well within your needs.
Divorcing spouses often have difficulty trusting one another, and unfortunately our courts’ adversarial proceedings in litigation tend to further erode openness and trust by encouraging spouses to fight not only for their own interests but also against the interests of their spouse. When Collaboration occurs, the family’s needs are addressed by professionals and the spouses do not have to “trust” the litigation. They only have to trust the professional who are the guardians of the process. The Collaborative Process works, even in pandemic times and 2020.
Pandemics lead to change. How much change occurs depends on your choices and may be impacted by the choices of those around you. Wash your hands; wear a mask; take care of yourself and others. Peace.
Attorney Aubrey Ducker is a partner at CPLS, P.A., and a member of the Firm’s Family and Elder Law Practice Groups. Contact Attorney Ducker today at email@example.com to discuss any family or marital legal issues you may be experiencing.
1. Experience Matters
When choosing what mediator may fit best with the issues in your family law case, it is important to find a mediator with a proven record of success in resolving cases. Most mediators are chosen as a result of the relationship they have built with the attorneys in the community. If you have retained an attorney for your family law case, then it is likely your attorney has several mediators they have worked with in the past and would likely recommend a mediator based on their past experiences with that particular mediator. If you do not have an attorney, or your attorney is not familiar with proven mediators, then it becomes even more important to do your homework and research as much as you can about the mediators in your area who may be the right fit for your case.
2. Legal knowledge matters
It is important to know that to be a family law mediator in Florida does not require a law license. In fact, there are qualified professionals, such as psychologists, counselors, and other mental health experts, that have been certified by the Florida Supreme Court in family law mediation, just like attorneys. So depending on the issues in your case it is possible you will want to consider using someone that has a non-legal background. If financial or other legal-intensive issues are not the top priority, but rather if deciding child-related issues are of the utmost importance, then it may make sense to use a mental health professional that is sensitive to the issues involving children and co-parenting. If, however, there are complex financial or legal issues, then having a non-attorney mediator may not be your best option.
3. Demeanor matters
Having a mediator that respects the parties, their positions and the attorneys is very important to having a successful mediation. If one party feels that the mediator is not acting in a neutral way, or has the appearance that they are favoring one side over the other, then it is likely that would have a negative effect on the mediation and it would be unlikely that the case would resolve by way of mediation with that particular mediator. It is of vital importance to have a mediator that you feel comfortable with, is open to hearing both sides and does not choose sides during a mediation.
4. Location matters
Believe it or not, sometimes the location of the mediation itself can determine whether or not a mediation will be successful. Mediations can occur just about anywhere, including an attorney’s office or a more neutral location, such as the mediator’s office. In some cases, parties may not be comfortable going to mediation at the opposing attorney’s office, so it is important to consider these issues when scheduling your mediation.
5. Costs Matter
One of the first questions I usually get from my clients is, “How much is mediation going to cost?” In order to gauge the costs, it is important to understand that there are two types of mediations, a courthouse mediation and a private mediation. Usually, the difference between the two comes down to how much money the parties make. If the parties make less than $100,000 in combined gross income, then they would qualify to have a reduced cost mediation offered through the courthouse and would pay a total of $60 to $120 for a three-hour mediation. If the parties’ combined gross income is greater than $100,00, then they would need to find a private mediator to mediate their case, and those costs will generally run anywhere from $100 to $350 per hour, with usually a two or three-hour minimum. When it comes to mediation and private mediation, in particular, it is important to remember that if you do resolve your case through mediation, then the costs you spend for that mediation would be a drop in the bucket compared to what you might spend for a full-blown trial to litigate all of the issues in your family law case.
Attorney Russell J. Frank is a partner at CPLS, P.A., and a Florida Supreme Court Certified Family Mediation who focuses his practice areas on family and marital law. Contact Attorney Frank today at firstname.lastname@example.org to discuss any family or marital legal issues you may be experiencing.
The hope of alimony reform seems to surface in Florida each year, much like the famous groundhog who comes out each year to tell us his weather predictions, however; in Florida the forecast for alimony reform always seems to be the same, “not this year.” Once again, there is a discussion in Tallahassee about overhauling Florida’s alimony system, which most observers say would include the elimination of permanent alimony, but like Groundhog Day, the patterns of the past seem to be on repeat.
Under current Florida law, alimony comes in several different forms, including: (1) Durational – lasting for a specific term of years; (2) Rehabilitative – which is designed to help a receiving spouse obtain the skills and education necessary for them to be self-supportive in the workforce; (3) bridge-the-gap – intended to last only for two or three years to help a spouse transition back into being fully self-supportive; and (4) Permanent – which would last until the death of one of the parties. Unfortunately, there is little structure set in these laws that provides uniformity in alimony awards throughout the state, or even within counties, as alimony remains largely discretionary, meaning that the Judges can individually choose not only if they will award alimony, but they will also decide the amount of alimony and how long it should last.
While there are specific statutory factors that the Courts must consider in their alimony determinations, there is no set mathematical equation to help assist the Judges in their determination of alimony amounts and duration, as there is with child support calculations. For child support, Florida law utilizes a mathematical formula, using the parents’ incomes and the amount of time the children spend with each parent, taking into consideration health insurance and child-care related costs, to get to an end number of support that would be uniform regardless of where in Florida your case is decided. Many believe that a similar analysis needs to be applied in alimony determinations.
Some of the issues that have prevented the passage of alimony reform in the past have little to do with the underlying issues of permanent alimony, but rather are centered are other issues, including: (1) How to treat existing alimony payments and specifically if alimony reform laws would be retroactive, which many fear would create uncertainty in existing alimony orders and send an influx of cases back to the Courts; (2) The possible inclusion of timesharing provisions, including, as has been tried in the past, the creation of a presumption of equal, 50/50 timesharing between parents; and (3) the fear that the elimination of permanent alimony may work to shift the costs of support from a former spouse to the State, with the thinking on this being that if permanent alimony is eliminated, then a spouse who may have been eligible for permanent alimony under our now existing laws could then have to apply for government assistance to make up for any alimony they may have lost out on, which would in turn increase the costs to the State.
While discussion of alimony reform in Florida continues, until some of these issues raised above can be adequately and sufficiently addressed, we may not see any substantive reform actually get passed. Attorney Russell J. Frank is a partner at CPLS, P.A., and focuses his practice areas on family and marital law. Contact Attorney Frank today at email@example.com to discuss any family or marital legal issues you may be experiencing.
We are certainly living in a different time right now. Sheltering in place, social distancing, and wearing masks. And as many areas begin to reopen and relax restrictions, life will start to look much like it did before. One of the places that are not reopening and may not be for a while are the Courts. Since these are places where large gatherings are common, these may be the last to resume operations.
For many, the closure of the courts has had no effect. For others, this has had a huge impact. Those in the middle of a divorce have had their cases put on hold indefinitely. When the courts do reopen at some point, there will be a backlog of cases already the system such as those whose scheduled hearings and trials were canceled as well as those that need to be scheduled. The partial or full resolution of the cases will be delayed indefinitely. Those who have just decided to move ahead with their divorce cannot begin their cases until the courts have opened. When the courts do restart, these cases will be the last to be heard due to the backlog of existing cases when this pandemic began.
For those who are beginning their divorce journey and even the ones that are already in the process, there are alternative paths than using the courts to resolve their case. Mediation with or without attorneys is one option. The spouses can utilize this dispute resolution opportunity whether their divorce has been filed in court or not. There is a significant reduction in cost if attorneys are not used. The most significant benefit of mediation is that the parties and only the parties decide the outcome of their case instead of a judge. Who best to know how to resolve their divorce issues effectively? Another benefit is that the parties decide when to meet and not allow the courts to dictate the speed or lack thereof of their case. The parties also decide when to end their case. Frequently, their case takes significantly less time to come to a resolution than if their case was in court. Many times, their cases can be resolved in one meeting. The swiftness, direction, and outcome of their case are totally in the hands of the parties who use mediation to resolve their divorce.
The time is now to move ahead with your divorce even though the courts may be closed. Mediation is one option to resolve your case. Next week, I will focus on another opportunity to resolve your divorce without using the courts.
As a Certified Family Law Mediator, I have facilitated and worked with many couples toward a successful outcome of their divorce through mediation. Having previous experience as a CPA allows me to provide additional support in developing financial options with them.
If you’d like more information on how to move forward with your divorce or any other family law matter contact Attorney Anthony Diaz today at firstname.lastname@example.org to discuss any family or marital legal issues you may be experiencing.
As almost every aspect of our lives continues to be impacted by the Covid-19 pandemic, many people are finding it hard to make ends meet as they wait for the economy to re-open. This is particularly true for those that must still try to manage on-going Court ordered financial obligations such as child support. I have received a lot of questions lately from parents eager to learn about whether they can modify their existing support payments due to loss of income during Covid-19, and while the general rule in family law cases is that child support can be modified, people seeking Covid-19 related modifications may face certain hurdles.
Florida law permits the modification of child support obligations, either up or down, based on a substantial, unanticipated, long-term change of circumstances. In most cases, child support modification requests are based on a reduction in a parent’s income usually caused by a change in or elimination of employment. If such a change in employment has occurred, then the proper avenue to pursue is to seek a modification through the filing of a Supplemental Petition for Modification. In such a petition, the parent seeking modification must fully state the reasons as to why they can no longer make their Court-ordered support payments, including indicating when the income reduction started and how long the situation may be expected to last.
There are two main issues with requesting child support modifications during the Covid-19 pandemic that I can see. The first issue is whether or not a parent’s reduction in income would constitute a long-term change or a change that is more permanent in nature, versus a temporary reduction in income that has the potential, in the near future, to go back to pre-Covid 19 levels. This is evaluated on a case-by-case basis and determined by the industry in which a paying parent works, including the ability of that industry to get back going again. For example, if a parent is furloughed from their employment, but expected to return to work by June, then it may be difficult to argue to the Court for a modification of your support obligations. If however, you work in an industry, or at a job that may not bounce back quickly, or at all, then your chances of obtaining a modification of your child support amounts would be greatly increased.
The other main issue that could arise, depending on the county in which you live, is how to access to Court system during Covid-19. Back in March, the Florida Supreme Court issued orders that effectively closed courthouses throughout the State for all but essential court proceedings through the end of May. Under the guidelines provided by the Florida Supreme Court, the lower courts throughout Florida are to try to continue court services and proceedings using whatever technology is available to them. This means many non-essential hearings, such as child support issues, may be able to be heard telephonically or even by video until the Courts reopen to the public.
Each county is handling these issues slightly differently, with some counties moving full steam ahead with video and telephonic hearings, while others are only hearing essential matters, so if you have questions about your child support during Covid-19 it’s important to speak with an experienced family law attorney to discuss your specific case and circumstances. Attorney Russell J. Frank is a partner at CPLS, P.A., and focuses his practice areas on family and marital law. Contact Attorney Frank today at email@example.com to discuss any family or marital legal issues you may be experiencing.
There is a lot of uncertainty throughout the world right now during this unprecedented pandemic caused by Covid-19. As we continue to navigate the unknown and deal with societal changes that could represent some new norms, many parents are having real concerns over how to effectively co-parent during this pandemic. As I try to tell my clients, the most important thing that parents can do during this time is to try to have effective communication with their co-parent. Now I know sometimes that is a lot easier said than done, but effective and regular communication regarding the issues that we are all concerned with now, including finances, schooling, child care issues and getting the essentials we need from day-to-day, can help assist parents in ensuring that their children are being taken care of during these times.
In cases where the Court has already entered a final judgment, a parenting plan should breakdown timesharing schedules, but if your case is still pending, you may not have that clarity. If you are a parent that does not have your child the majority of time, then it is possible you are being denied timesharing during the Covid-19 pandemic. If that is the case, then what options do these parents have at this time? Any parent can always file a motion in court to enforce timesharing or present any other issue related to a child that is being affected by this pandemic. While the hearing may not take place in person, many courts will hear the disputes over telephone or video if the parties can agree on conducting a hearing in such a way. If a parent is being denied physical timesharing, then virtual timesharing should, at a minimum, take its place, if not increase during the length of time that timesharing cannot occur.
If you are being denied reasonable contact and access during Covid-19, most Courts will take these denials of timesharing very seriously. The Court has broad powers under contempt and enforcement proceedings to fashion remedies to make sure that a parent who is being denied access will get that made up, whether that is by extended timesharing over the summer or holidays, or when the stay-at-home orders are lifted. If you are being denied access, it is important to understand what rights you have during these very uncertain times to continue having the ability to access and parent your children for as long as Covid-19 continues to be a significant issue for our society.
If you have questions about Covid-19 and your family law case it’s important to speak with an experienced family law attorney to discuss your specific case and circumstances. Attorney Russell J. Frank is a partner at CPLS, P.A., and focuses his practice areas on family and marital law. Contact Attorney Frank today at firstname.lastname@example.org to discuss any family or marital legal issues you may be experiencing.
We are certainly coping with interesting times these days that call for different ways of living. This especially holds true for those who are timesharing with the other parent. Co-parenting during or after a divorce can be challenging in itself. Couple that with coping with COVID-19 adds enough stress that can derail even the best of timesharing. What are some ways to co-parent and timeshare during this period and why is it so important?
- Keeping the timesharing the same as much as possible. When outside circumstances get our attention especially ones that stressful, it’s easy to focus on what you’re going through and not as much with your children. Imagine how they must be feeling if we as parents are fearful. Work with the other parent to keep this time as normal as possible especially with your timesharing. Children look for consistency during this time and change will contribute to their focus on the pandemic instead of the certainty of being with each parent. That being said, make sure you follow any guidelines or orders from the Court and your state and local governments as it relates to the pandemic and remaining safe.
- Most children are home and many parents are as well. There are many homeschooling opportunities that are happening while the schools remain closed during this time. It’s important for each parent to make sure that the child’s homeschooling is kept current. It’s common for there to be different parenting styles when it comes to homework. During normal times, this can be a source of friction between the parents and needs to be addressed. As the children are being given assignments either online or other ways instead of being in school, both parents need to work together during their timesharing to make sure these assignments are completed and reviewed.
- As children are at home instead of being in school, there are many opportunities for distraction. It’s easy for children to think they’re on vacation during this time which you can’t blame them right? This is a perfect opportunity for parents to spend time during the week with their children in ways that aren’t possible when school is in session. Block out certain times during the day just for fun. I see many parents walking and riding bicycles with their children. These are priceless moments to form lasting memories with our children. The rituals that are created now can be maintained when school is back in session and become new ways of bonding with your child.
Being in this pandemic is stressful with uncertainty for children and especially while during timesharing with the other parent. We can still create a safe environment for them during this time. Working together with the other parent to keep timesharing and co-parenting the same as much as possible will allow our children to move through this time easier and will less stress. Isn’t that what we want for them and us as well? Stay safe and healthy.
Recently, a husband and wife were having a disagreement over how to discipline their child. This escalated into a full blown argument. Voices were raised and tensions were heightened. Unfortunately, a physical altercation ensued and the police were called. One of the parents was arrested and charged with battery and a domestic violence injunction was issued.
Sadly, this happens everyday everywhere. What made this incident different? This occurred during the times we live in now – the COVID-19 pandemic – a disease that plays no favorites and has affected everyone in some way or another. All of us are on edge – we may have lost our job with bills that can’t be paid and uncertainty on when they will be able to. We may have family or friends that were infected and their health in doubt or sadly have passed away. Most if not all of us are sheltered in place or ordered to stay home which feels isolating at best.
All of these stressors that we are all dealing with were also affecting these parents. What separated them from most of us is that they were going through a divorce. What made this situation more difficult was they were still living together. You see both parents lost their jobs as a result of the pandemic. Neither parent was financially able to live independent of the other. They were forced to live under one roof, shelter in place with no income and also struggle with the end of their marriage. It was not surprising that these events created a perfect storm that end in physical violence.
Living with this pandemic is stressful even in the best of circumstances. It has physical, financial, and emotional costs. But combined with the stressors of divorce, it resulted in an unintended consequence and now the parents are forced to deal with the criminal justice system.
What would be helpful in this situation? Reaching out for support from family and friends and engaging a counselor to help in keeping the peace throughout the divorce. During this time, its imperative that both parents have legal counsel that are supportive and cooperative in helping both of them achieve a fair and peaceful outcome. If resources are an issue which is not uncommon during this time, a mediator can be engaged to help the parents reach an equally fair result.
We are navigating through unchartered waters. It can become rough and choppy during a divorce. Make sure you have the proper guidance, direction and support to guide you during this perfect storm.
If you have additional questions or concerns Contact Attorney Anthony Diaz today at email@example.com to discuss any family or marital legal issues you may be experiencing.
If you currently have a pending legal matter during Covid-19 then most assuredly, you have already been informed, either by the Court or an attorney, that Covid-19 will likely cause a delay in your legal case. In some areas of law, that may not be a big deal, such as where a large bank has their foreclosure case against a homeowner delayed, but in other areas of the law, such delays can have very real and long-lasting implications. One of these areas of law is family law. While most Courts throughout the state remain open in some capacity, some courts are only hearing emergency matters, so if you had a hearing or trial cancelled as a result of Covid-19, you may be wondering how and when your case will move forward.
While each county in Central Florida is taking slightly different approaches, many Courts in Orange and Osceola Counties remain open to hear family law disputes, however, the ways in which those hearings are being conducted are changing rapidly. Many courts throughout the state are now utilizing video conferencing capabilities, whether it be through Skype, FaceTime, Zoom, Microsoft Teams, Webex or another video conferencing platform, and the Court has adjusted, on the fly, in order to try to keep cases moving.
In trying to provide parents some guidance during these uncertain times, local Courts are issuing temporary orders during Covid-19 addressing timesharing issues. Some Courts have ordered that regularly scheduled timesharing should try proceed as normal, with each parent being reminded to be more cognizant of additional precautions that may need to be taken during exchanges. Other Courts have taken a more strict approach to ensuring that stay-in-place orders remain adhered to by permitting a parent with majority timesharing to keep the children until such stay-in-place orders are lifted. In that scenario, the parent who is being denied in-person visitation should receive more frequent telephone and video vitiations while the stay-in-place orders remain in effect, and it is also likely in many cases that a parent who is denied timesharing as a result of Covid-19 will be awarded make-up timesharing to make up for any time that they may have lost with their children. In fact, there are local orders that state if a Court finds that a parent may have been unreasonably withholding access and contact with a child during Covid-19, then the rules of contempt would still apply and it’s possible that parent could be held in contempt of court for unreasonably restricting access and timesharing.
If you have questions about access to your children and timesharing during Covid-19 you will want to contact a family law attorney who is familiar with the many Administrative Orders coming out from the Florida Supreme Court and local courts to ensure you know how your specific county is dealing with timesharing issues during these uncertain times. If you feel that you are being denied reasonable access, or are not sure how timesharing should proceed for your family, it may be necessary to contact a family law attorney in order to ensure you are complying with Court orders and taking the necessary steps to keep your children protected from Covid-19.
Attorney Russell J. Frank is a partner at CPLS, P.A. and focuses his practice areas on family and marital law. Contact Attorney Frank today at firstname.lastname@example.org to discuss any family or marital legal issues you may be experiencing.