Get The Lay Of The Land

Carolyn S. Zisser provides a definitive guide to the rules of discovery in divorce. Here you will learn the ins and outs and requirements of discovery related to divorce.

  1. Get The Lay Of The Land : Discovery Tools and Tactics:  A Discover Roadmap
    1. Determining the Need for Discovery.
      1. General principles, Understand the Florida Family Law Rules of Procedure, (Rule 12.005-750), Florida Rule of Civil Procedure, Rule (1.010-1.810), Evidence Code, and how they interrelate.   The key is to determine very early in the case which discovery tools are most efficiently tailored to the needs of your case.  Remember that discovery begins with a thorough understanding of your own case.Develop a case plan from your initial client conference which contains a discovery roadmap.   Note documents needed to prove your case.   Prepare a “Case Plan” or roadmap of your case. Effective discovery begins with understanding the legal elements of your case.
      2. “Discovery Begins at Home.” Discovery from your own client:
        1. The Custody Case.
          1. Custody Questionnaire – assess the strengths and weaknesses of your case and to determine all potential witnesses for and against your case.  (See Custody Worksheet, Attachment A.)
          2. Obtain witness statements from your client’s witnesses.
          3. Apply child custody factors to your case:
            1. School records.
            2. Psychiatric and psychological records for each parent and child.
            3. Community service awards that the parent may have won.
            4. Medical records.
          4. Prepare and keep calendars evidencing child care tasks performed and residential time for your client and the opposing party.
      3. Financial issues.
        1. Be in control of the discovery process, have your client bring to your office all financial documents kept at home or in office. Then ask yourself what evidence I need (documents and witnesses) to use to prove the elements of my case.
        2. Identify the financial issues of your case at the initial conference.
          Use the “PEACE” Acronym.
          P = Physical residential care (custody)
          E = Equitable distribution
          A = Alimony
          C = Child support
          E = Everything else.

          1. The “P” or physical residential care or custody often effects the remaining issues, i.e., the party providing residential care will in all likelihood be awarded exclusive use of the home and be the recipient of child support.
        3. Equitable distribution and support issues entail identifying all assets currently owned and previously owned during the marriage, i.e. review of bank records to determine whether the funds received from the sale of the asset have been accounted for in bank accounts or used to acquire another asset.
        4. The court considers assets awarded to each spouse in determining the respective parties’ entitlement to alimony.  Florida Statute § 61.08(1)(d)
        5. Alimony and child support cases will both involve need and ability to pay.   The most important documents consist of financial statements, income records, and banking information for current information.
        6. Establish the standard of living for alimony case as well for child support, especially if an upward deviation from the child support guidelines is being sought, under Florida Statutes § 61.30(11)(a).
        7. Tax returns for as many years as your client has maintained them.
        8. Bank and investment account records for at least three (3) years to show patterns of expenditures and how bills were paid as well as who “controlled” the finances.
        9. “E” – Everything else may include tax issues, life and medical insurance, and any other issues relevant in your case.
    2. General Formal Discovery Tools: Know The Tools In Your Discovery Tool Box and How to Use Them.
      1.   Scope and Discovery.
        1. Florida Family Law Rules of Procedure apply Florida Rules of Civil Procedure to unique needs of family law cases.  Rule 1.280(b).   “Any matter not privileged, that is relevant to the subject matter of the pending action. whether it relates to the claim or defense of the party seeking discovery or the claim or defense of any other party, including the existence, description, nature, custody, condition, and location of any books, documents or other tangible things and the identity and location of persons having knowledge of any discoverable matter.”  Not objectionable that information sought will be inadmissible at the trial if the information sought “appears reasonably calculated to lead to the discovery of admissible evidence.”
        2. Sequential Use of Discovery.
          1. Begins with Standard Family Law Interrogatories Rule 12.340, Florida Family Law Rules of Procedure.   Must begin with Form 12.930(b), Mandatory Disclosure, Rule 12.285, Florida Family Law Rules of Procedure.
          2. Custody interrogatories in child custody case. (Attachment B.)
          3. Comprehensive Request For Production Of Documents.
          4. End with Depositions of Witnesses, Experts, and Request For Admissions.
            There is no limitation to the frequency of use of those methods unless the court orders otherwise.  Rule 1.280(a).  These methods of discovery may be used in any sequence, Rule 1.280(d).
        3. Specific Discover Tools (each has Family Law Rule counterpart).
          1. Mandatory Disclosure, Rule 12.285 Family Law Rules of Procedure.  The first document production in the family law case.   
            1. Applies to all family law cases except proceedings except adoptions, simplified dissolution, enforcement, contempt, injunction for domestic repeat, or dating violence and uncontested dissolutions when respondent is served by publication and does not file an answer.  (Attachment C, Production of Documents/Mandatory Disclosure checklist.)
            2. Rule 12.285 (b)(1)(B) provides that mandatory disclosure documents are to be exchanged within forty five (45) days of service of the initial pleading on Respondent or within two (2) days of the hearing on temporary relief, if temporary relief sought, whichever earlier.
            3. Mandatory disclosure required prior to a temporary needs hearing includes a financial affidavit, the last year’s income tax return, W-2’s, 1099’s, etc., for the last year if that year’s tax return as has not been filed, a child support guidelines worksheet (if applicable) and paystubs or other evidence of income for the preceding three (3) months.
            4. Parties have a continuing duty to supplement documents described in Rule 12.285, including Financial Affidavits, whenever there is a material change in their financial status.  Rule 12.285(e)(1).  Affirmative requirement to serve any subsequently discovered or acquired documents supporting amendment to Financial Affidavit.   Rule 12.285 (e)(2).
          2. Interrogatories to Party. Rule 1.340.
  1. Interrogatories Rule 12.340, Florida Family Law Rules of Procedures, and Rule 1.340, Florida Rules of Civil Procedure.
  2. Purpose.
  1. Identification and listing of property, bank accounts, insurance policies, retirement plans, physicians, medical issues.
  2. The first to place the party declare the basis of any claim of special equity in martial property.
  3. Answers must be sworn to by the responding party.
  4. Answers are admissible in evidence as direct evidence as an admission.
  5. Commits your opposing party.
  1. Procedure. 
  1. The party to whom the interrogatories are directed shall serve the answers and any objections within thirty (30) days after the service of the interrogatories except a defendant may serve answers or objection within forty five (45) days of service of process of initial pleadings upon a defendant.  The court may allow a shorter or longer time period.
  2. Initial interrogatories same as Form 12.930(b).
  3. Modification interrogatories same as Rule 12.930(c).
  4. Additional interrogatories limited to 10 interrogatories, including sub-parts, in addition to standard interrogatories.  Must obtain permission of court to send more than 10 interrogatories in addition to standard interrogatories. Rule 12.340(b). Request consent from opposing counsel.
  5. Option to produce records:
  1. “Permissible only were the burden of deriving or ascertaining the answer is substantially the same for the party serving the interrogatory as for the party to whom it is directed.”  Improper to claim “see documents produced” but, rather, the answer to the interrogatory must specify the records from which the answer may be derived or ascertained and offer to give the party serving the interrogatory a reasonable opportunity to examine, audit, or inspect  the records and to make copies, compilations, abstracts, or summaries in order to produce records in lieu of answering the interrogatory, the answer must be in “sufficient detail” to permit the interrogating party to locate and identify, as readily as can the party interrogated, the records from which the answer may be derived or ascertained or identify a person or persons representing the interrogated party who will be available to assist the interrogating party in locating and identifying the records at the time they are produced.
  1. Practice Tip: Be creative. Draft interrogatories from the beginning which go to the heart of your opposition’s case (Attachment D).
  1. Special interrogatories for electronic discovery.  In advance of your request to production of the computer and other sources of electronic discovery to identify the various electronic data hardware your opposing part uses, which will be the subject matter of the discovery request, as well as to identify all e-mail addresses used.
  1. Production of Documents Or Things Upon Land For Inspection And Other Purposes.  Rule 1.350.

Applies not only to paper documents, but for inspection of computers and other electronic media.

  1. Request for Documents.
  1. Documents may be requested to be produced as originals and not copies (Rule 12.285 (a)(2)).
  2. Request electronic data kept on computers and other electronic devices. Otherwise, it may not be produced if not kept as a paper document.
  3. Documents must be produced to the office of the requesting party, unless producing party requests that they be produced in the normal course of business.
  4. Improper for a party to fail to produce a document because that party does not possess the document.   Remember the rule states “possession or control.” If the document is in the possession of his or her accountant, attorney, or other third party, that documents is in that party’s “control” and should, therefore, be produced.
  1. Response to Production of Documents, Rule 1.350(b).                       The Rule requires a detailed Response to production of the documents.   The producing party must itemize the documents produced, not just deliver a stack of papers. Insist that this Rule be followed.  It avoids later controversy as to whether a particular document was produced as whether an account or asset was disclosed.
  2. Objections to Request. If responding party does not make a timely objection, within 30 days of request, that objection is waived and the court may enter an order compelling the production.  American Funding Ltd. v. Hill. 402 So.2d 1369 (Fla. 1st DCA 1981). Where claim of privilege sought, court must hold in camera inspection to review discovery requested to determine whether claim of privilege valid.   Ashemimry v. Nata, 847 So.2d 603, 605 (Fla. 5th DCA 2003).
  3. Discovery of Electronic Data (the File Cabinet Analogy).         Especially useful where opposing party does substantial work on the computer, does on-line banking, and conducts communications with financial advisors, business associates, by computers.  In the custody case can discover e-mails evidencing adultery, use of Internet for pornographic purposes, etc.

Procedure:

  1. Broad scope of discovery under Rule 1.280 make all forms of data kept electronically whether on computer, PDAs, cell phones, or other electronic media discoverable.
  2. Begin with computer anti-spoliation letter (Attachment E).
  3. Promulgate interrogatories and/or request by letter to identify all computer hardware used to store, utilize, and maintain electronic data, as well as to disclose all e–mail addresses and user names, as well as identify all software programs used, i.e., spreadsheet programs such as Quicken, etc. (Attachments D,F, and G.)
  4. Request to Inspect and Produce (Attachment H).
  5. The computers and other electronic hardware should be delivered to the forensic computer expert who can most efficiently make a byte-stream copy of the hardware in his computer lab.
  6. The privilege log: Rule 1.280(b)(5) claims of privilege or protection of trial preparation materials withheld on the basis of a claim of privilege must be stated with specificity describing nature of the documents, communications, or things not being produced or disclosed in a manner that, without revealing information that is held privileged or protected, must be made with particularity.   Nationwide Mutual Fire Insurance Company v. Hess, 814 So.2d 1240 (Fla 5th DCA 2002.
  7. Case law regarding discovery of electronic evidence.
  1. Florida Cases:
  1. Southern Diagnostic Associates v. Bencosme, 833 So.2d 801 (Fla. 3rd DCA 2002) both authorized the inspections/copying of a third (non) parties computers over objection, conditioned upon the establishment of  reasonable parameters of time and scope together with access restrictions to prevent compromising patient confidentiality and to prevent harm to the computers/databases.
  2. Strasser v. Yalamanchi, 669 So.2d 1142 (Fla. 4th DCA 1996): While discovery of computer hard drive was denied, the Court noted that searches of electronic data are clearly authorized pursuant to the Florida Rules of Civil Procedure.   The denial of the discovery request was fact specific (privilege claims and possible harm to the computer system). Those issues have since been addressed by other judicial decisions and protect improvements in technology.
  1. Cases Outside Florida.
  1. Anti-Monopoly, Inc. v. Hasbro, Inc., 94 Civ. 2120 (S.D.N.Y. 1995): “[T]oday it is black letter law that today computerized data is discoverable if relevant.”
  2. Northwest Airlines v Local 2000, C.A. No. 00-08DWF/AJB (D. Minn. Feb 2, 2000):  The court ordered the plaintiff’s expert to act as a neutral third party expert on behalf of the court and who collected and imaged the defendant’s hard drives and provided the parties with a complete report of all data “deemed responsive.”
  3. Antioch v. Scrapbook Borders, Inc., 210 F.R.D. (D. Minn. 2002): In a copyright infringement case, the court granted the plaintiff’s motion for the appointment of a neutral computer forensic expert to recover a mirror image of the defendant’s hard drive and to prepare a list of the documents recovered to the parties and procedures to deal with privilege.
  4. Byrne v. Byrne, 650 N.Y.S. 2d 499 (N.Y. Sup. Ct. 1996) : In a divorce proceeding, the wife was granted access to search the husband’s computer that he used for both business and personal purposes to obtain possible evidence and information about the couple’s finances and marital assets.
  5. Tulip Computer Int’l v. Dell Computers Corp., 2002 WL 818061 (D. Del Apr. 30, 2002): The court granted a motion to compel Dell to produce hard drive disks for plaintiff’s expert to conduct a key word search on and plaintiff was to then give the defendant a list of the e-mails that contained the search terms.   The defendant was to then produce those documents to the plaintiff after a review for privilege and confidentiality claims.
  6. Superior Consultant Co. v. Bailey, 2000 WL 1279161 (E.D. Mich. Aug. 22, 2000); The court ordered a defendant to create and produce for the plaintiff a backup file of the defendant’s laptop as well as any other computer he had access to.
  7. Playboy Enterprises, Inc. v. Welles, 60 F. Supp. 2d 1050 (S.D. Cal. 1999): The court appointed a computer forensics expert to create a “mirror image” of the defendant’s hard drive and the court reserved the defendant’s right to production after data captured by the expert and a review of the materials. 
  8. Linnen v. A.H. Robins Co., 1999 WL 462015 (Mass Super. June 16, 1999): The court sanctioned the defendant for not turning over electronic database and stated: “A discovery request aimed at the production of records retained in some electronic form is no different in principle, from a request for documents contained in any office file cabinet.”
  9. Examinations of Person, Florida Family Law Rules of Procedures Rule 12.360, Florida Rules of Civil Procedures, Rule 1.360.
  1. The family law counterpart of this Rule includes, but is not limited to, examinations involving physical or mental condition, employability, vocational testing, genetic testing, or other types of exams related to a matter in controversy.
  2. Procedure to obtain physical, psychological, or vocational evaluation is by Notice, providing the name, date, and time of the proposed evaluation, allegations of good cause, and notice of at least forty (40) days.  Responding party has thirty (30) days to serve an objection, after which time the court will determine whether the evaluation will be made. 
  3. Court compelled psychological examination should only be ordered upon a showing of good cause.  Williams v. Williams, 550 So.2d 166 (Fla. 2nd DCA 1989); Schouw v. Schouw, 593 So.2d 1200 (Fla. 5th DCA 1992). The showing of good cause for psychological evaluation in a custody case should be based on evidence that the parent has been unable to meet the needs of the children.  Williams, supra, at 167.
  4. For the mental condition to be “in controversy,” the condition must directly involve the material element of the cause of action.   To show “good cause” for the examination, it must be demonstrated that expert medical testimony is necessary to resolve the issue.   W.A. Gasparino v. Murphy, 352 So.2d 933 (Fla. 2nd DCA 1977).
  5. Child custody evaluations. Rule 12.363.  The commentary to Rule 12.360 interprets the Rule to discourage subjecting children to multiple interviews testing and evaluations.
  1. Production Of Documents And Things Without Depositions.  Rule 1.351.  Use to obtain documents from third parties (banks, credit card companies, financial statements) when documents alone are needed. If objection made, must obtain by deposition.
  2. Depositions Before Action or Pending Appeal.  Rule 1.290.
  3. Deposition Upon Written Questions. Rule 1.320.
  1. Deposition Upon Written Questions. FRCP Rule 1.320. (Attachment I.)
  1. Excellent discovery tool where limited and highly focused discovery needed for a witness (usually financial records witness) where the information can be communicated by answer to specific questions.   Especially useful costs savings discovery vehicle where witness lives at a distance from the court, and where answers require witness to obtain and review documents in order to answer the question. 
  2. Answers are sworn to, as in the oral discovery deposition, obtained by the court reporter, who then delivers the answers to the party promulgating the discovery.
  3. Use after you have discovered names of knowledgeable individuals regarding accounts, etc.
  4. The notice should state: 1) name and address of the person who is to answer them, if known, and if the name is not known, a general description sufficient to identify the person or the particular class or group which the person belongs, and 2) the name or descriptive title and address of the officer before whom a deposition is to be taken.
  5. Within thirty (30) days after the notice and written questions were served, the parties may serve cross questions upon all other parties.  Within ten (10) days after being served, cross questions of the party may serve redirect questions upon all other parties.   Within ten (10) days after being served with the redirect questions, a party may serve cross questions upon all other parties.
  6. Deposition Upon Oral Examinations. Rule 1.310.
  1. Any depositions may be recorded by videotape without leave of the court or stipulation of the parties provided it is taken in accordance with Rule 1.310 (b)(4).
  2. Objection At Deposition. Rule 1.310 (c).
  1. Objections must be made “concisely, in a non-argumentative, and non-suggestive manner.”
  2. Instructions not to answer proper only in three (3) circumstances:
  1. To preserve a privilege.
  2. To enforce a limitation on evidence directed by the court.
  3. To present a motion under subdivision (d).  (Motion to terminate or limit examination.)

Otherwise, evidence objected to is to be taken subject to the objections.   If there is subject matter in the deposition which you are requesting limited, prepare and serve a Motion In Limine to be heard by the court before the deposition.

  1. Objections to the competency of the witness or to the competency, relevancy, or materiality of testimony are not waived by failure to make them before or during the taking of a deposition. Rule 1.330(d)(3)(A).   Errors and irregularities during oral examination in the manner of taking the depositions, in the form of the questions or answers or in the conduct of the parties and errors of any kind that might be obviated, removed, or cured if properly presented are waived.  Rule 1.330 (d)(3)(B).
  2. Remedies During Deposition.  Rule 1.310(d)   Remedy for bad faith conduct during a deposition, annoyance, or an objection or instruction to a deponent not to answer is to request the court in where the action is pending or in which the deposition is being taken to enter an order that the court reporter to cease forthwith from taking a deposition or limit the scope and manner of taking the deposition   An award of expenses incurred in relation to a motion is also proper.
  3. Use of Depositions in Court Proceedings, Rule 1.330.
  1. Parties.  All or any part of the deposition may be used against any party at the trial or upon the hearing of a motion.
  2. Non-Party Witness.   The deposition of a witness, whether or not a party, may be used by any party for any purpose if the court finds: A) that the witness is dead; B) that the witness is at a greater distance than 100 miles from the place of trial or hearing or is out-of-state unless it appears that the absence of the witness was procured by the party offering the deposition; C)   the witness is unable to attend or testify because of age, illness, infirmity or imprisonment; D) the party offering the deposition has been unable to secure the attendance of the witness by subpoena; and E) upon application and notice that there are exceptional circumstances and that it is desirable and in the interest of justice to allow the deposition to be used; or F) the witness is an expert or skilled witness.
  1. Practice Tips.
  1. In a child custody case, depose opposing party early in the case to determine all factual bases of his/her case.   The transcript and a summary of the deposition should be given to the custody evaluator.
  2. In cases which are primarily financial in nature, depositions should ordinarily come after you have received opposing party’s answers to interrogatories and documents.   Where documents are requested to be produced at deposition, at least thirty (30) days notice is required, unless the party informally agrees to produce requested documents in a shorter period of time.
  3. Deposition of Public or Private Corporation, Partnership, Or Association or Governmental Agency.  Rule 1.3109(b)(6).  Designate with reasonable particularity the matters upon which the examination is requested in requesting the organization to designate the officers, directors, or managing agents or other person on its behalf stating the matters upon which each person designated will testify.  This rule is especially useful where you know the information you need to obtain from the corporation but you do not know the names of the individuals. 
  4. Depositions By Telephone. Rule 1.310(b)(7).  Deposition by telephone requires a motion to the court and order.
  5. Deposition Of Expert Witness. Rule 1.390 cf Rule 1.280(b)(3) and (4) – Trial Preparation: Materials In Trial Preparation: Experts.
  1. Deposition of Expert Witness.  Rule 1.390.  Erosion of work product privilege for discovery of expert witness opinion and basis of opinion. Trial preparation materials are also discoverable under certain circumstances under Rule 1.280 (b)(3).  See Ehrhardt, Prof. Charles W., Pulling Skeletons from the Closet: A Look Into The Work-Product Doctrine As Applied to Expert Witness.   Fla. State University Law Review (Fall 2003)
  2. Requests for Admissions. Fla. Fam. L.R.P. 12.370 and Fla. R.Civ.P.1.370.

Overlooked, highly powerful discovery vehicle to limit issues and shift attorneys fees and costs to other party.

  1. Admissions. Request the other party to admit the truth of any matters that relate to:
  1. Statements of opinion or fact.
  2. Application of law to fact.
  3. Genuineness of any document described in the request.
  1. Procedure.
  1. Responding party must admit or deny, or state with specificity, why they cannot admit or deny within thirty (30) days of service of the Request.
  2. If no response, the Request is automatically admitted.  Rule 1.370(b) 
  3. Attorneys fees and costs shall be awarded against the party who fails to admit the genuineness of any document or the truth of any matter requested if the genuineness of the document or the truth of the matter can be prove thereafter.  Rule 1.380(c)
  1. Practice Tips:  After the previously discussed discovery completed, state facts which you need to establish and which you believe are true in a simple sentence with one fact per sentence.  Develop a series of premises which, if admitted, will prove our case. (Attachment J.)
  1. Failure to Make Discovery. Discovery Sanctions, Rule 1.380(a) and Motion to Compel, Rule 1.380(a).   The work product privilege as to discovery of expert witnesses’ opinions has been eroded.
  2. Practice Tip: Organize Your Discovery.  A soon as the discovery comes into your office, a designated staff member, such as a Legal Assistant, should immediately compare the documents received, or the answers to interrogatories, or any of the responses to the discovery requested to determine whether the request has been complied with. (See Document Inventory list, Attachment K.) Opposing counsel should be notified in a timely manner of any deficiencies and be given an opportunity to cure the discovery defect prior to initiating a Motion to Compel. (See “good faith” letter, Attachment L.)
  1. Informal Methods of Discovery.
  1. Your own client.
  2. Request for documents or other information by letter to opposing counsel.    Request a timeframe for response before initiating a formal discovery.
  3. Telephone request.
  4. A request to opposing counsel by telephone or correspondence for update of financial documents or other information when you learn a change has taken place.
  5. Consensual appraisals – real estate, business.
  1. Proven Methods for Discovering Assets to Divorce
  1. How to Uncover Hidden Assets
  1. Subpoena ALL financial statements made by opposing party to all financial institutions with whom opposing party has done business throughout the marriage.   These financial statements should cover the entire time span of the marriage to obtain a baseline of assets owned at the beginning of the marriage and how financial condition has changed during the marriage.  You will see how opposing counsel has presented his/her financial condition in the best possible light prior to family law proceedings.
  2. Tax Returns – source of dividends and interest.
  3. Credit Reports – disclose bank accounts.
  4. Computer searches under names – reveal real estate and vehicles.
  5. Web-sites, GOOGLE searches.
  6. Hire a private investigator.
  7. Inspect opposing party’s computer especially items “deleted” from computer e.g., e-mails to banks overseas, etc. Remember that items deleted can be retrieved by a qualified computer forensics expert.
  8. Carefully examine entries on bank statements showing transfers to other accounts.  Look at your database of documents from your document organization system to see if the account disclosed.   This underscores the importance of insisting that interrogatories asking for listing of accounts be answered rather than a general reference to documents produced, especially when the opposing party fails to serve a response to production of documents itemizing the documents produced.   Remember that the opposing party’s production or non-production of documents is only responsive to documents in that party’s possession or control.  It is NOT a substitute for identifying all accounts in existence during the marriage. 
  9. Insist on full compliance with your discovery requests.  Make sure ALL accounts and assets have been disclosed.

Carolyn S. Zisser –  Esquire

Carolyn S. Zisser P.A., 302 Third Street, Suite 6, Neptune Beach, FL 32266

Telephone (904) 249-8787

Email: carolyn@zisserlegal.com

  1. Is It The End Of The Road: Concluding The Divorce Action?
  1. Drafting A Comprehensive Marital Settlement Agreement.
  1. Legal Principles Governing Marital Settlement Agreements.
  1. Contract principles govern the interpretation of a Marital Settlement Agreement Dorsen v. Dorsen, 393 So2d 632  (Fla. 4th DCA 1981).
  2. Unless grounds for rescission or withdrawal are shown, the trial court is bound to strictly enforce the stipulation and agreement between the parties.  Johnson v. Johnson, 663 So.2d 663 (Fla. 2nd DCA 1995).
  3. In a Motion to Invalidate An Agreement, an agreement settling a dissolution of marriage litigation is not subject to “fair and reasonable” inquiry by the trial court, absent allegations of fraud or coercion where the wife had the benefit of litigation discovery through her independently chosen attorney to learn the full nature and extent of her husband’s finances, had two year to conduct discovery, and had made no claims during the action that any of her husband’s discovery responses were false or intentionally misleading.  Petracca v. Petracca, 706 So.2d 904 (Fla. 4th DCA 1998).
  4. Marital Settlement Agreements reached in mediation are subject to challenge only based upon fraud, misrepresentation in discovery, or coercion.  Crupi v. Crupi, 784 So.2d 611 (Fla. 5th DCA 2001). Additionally, if the agreement is freely entered into, the courts are bound to enforce even an unreasonable Marital Settlement Agreement.  Schreiber v. Schreiber, 795 So.2d 1054 (Fla. 5th DCA 2001).
  5. Landmark case for vacating or modifying either an Antenuptial Agreement or Postnuptial Agreement in dissolution of marriage proceedings. Castro v. Castro, 508 So.2d 330 (Fla. 1987).
  6. The fact that one party to a Martial Settlement Agreement apparently made a bad bargain is not a sufficient ground by itself to vacate or modify an agreement.   Castro, supra; Griffith v. Griffith, 860 So.2d 1069 (Fla. 1st DCA 2003), Schreiber v. Schreiber, 795 So.2d 1054 (Fla. 5th DCA 2001).
  1. Requirements.
  1. Review Petition, Answer, Counter Petition, and pleadings to identify all issues in writing or read to the record.
  2. A Marital Settlement Agreement is enforceable only if it is supported by valuable consideration and voluntary, informed and mutual consent.  Loss v. Loss, 608 So.2d 39 (Fla. 4th DCA 1992).
  3. Must have a legal purpose. Zakoor v. Zakoor, 240 So.2d 192 (Fla. 4th DCA 1970).
  4. The final written Marital Settlement Agreement must be executed by both parties. Dickson v. Dickson, 429 So.2d 1372 (Fla. 3rd DCA 1983).
  1. Common Clauses.  See “Drafting Marriage Contracts in Florida,” 6th Edition, The Florida Bar.
  1. Parties.
  2. Recitals – basic information concerning parties – include place and date of marriage, names and birth dates or children, separation, intent of agreement.
  3. PEACE Acronym.
  1. Parental Responsibility.
  1. Shared parental responsibility or sole parental responsibility   
  2. Visitation/specific visitation
  3. Costs of transportation.
  4. Relocation.
  1. Equitable Distribution.
  1. Marital Home.
  1. Exclusive use of marital home.  Make provision for credit for mortgage payment, insurance and taxes on sale or partition.         Florida Statutes, § 61.077.
  2. Sale to third party.
  1. Other real estate.
  2. Pension distribution/Survivor benefits.
  1. Military 10 U.S.C. § 1408 – for alimony, child support or part of property settlement.   Annuity under Survivor Benefit Plan, 10 U.S.C. § 1447-1455.
  1. Bank and investment accounts.
  2. Vehicles.
  1. Alimony.
  1. Permanent periodic.
  2. Rehabilitative alimony.
  3. Bridge-the-gap alimony.
  4. Lump sum alimony.
  5. Waiver.
  6. Effect of cohabitation.
  1. Child Support.
  1. Dependency exemption.
  2. Payment through college.
  3. Medical and dental expenses allocated.
  4. Extension of support.
  1. “Everything Else.”
  1. Tax Consequences.
  1. Dependency exception.
  2. Joint or individual tax returns.
  3. Hold harmless tax liability.
  4. Innocent spouse rule.
  5. Tax refunds.
  6. Taxability/deductibility of alimony.
  1. Life insurance.  Party to whom the support obligations is owed and who needs the security should own the policy.
  2. Attorneys fees.
  3. General Release.
  4. Federal Income Taxes.
  1. Work with other specialist as needed – pensions actuaries for QDROs, estate planning lawyers where trusts, real estate lawyers where unusual real estate issue (i.e., real estate transferred into a Trust.)
  2. Enforcement of agreement.
  3. Mediation Agreements.
  1. Rule 12.740 and 12.741, Florida Family Law Rules of Procedure.                    Rule 12.740(f) sets forth requirements for written, signed, or electronically or stenographically recorded and affirmed mediation agreements to be filed with the court.
  1. Preparation And Trial Of A Divorce Action.
  1. Preparation.
  1. Start early! Review your client’s goals and the case roadmap. Identify and outline issues.
  2. Hire experts early.  Review all pleadings and discovery at least sixty (60) days before case set for trial to determine whether further discovery necessary or amendment to pleadings.
  3. Schedule your own “office case management” when receive Order Setting For Trial to calendar sufficient time to prepare your client, exhibits, and experts.
  4. “To-Do” lists.   Always write down a course of action or “To-Do” list. Update these lists during trial preparation.  Break down “To-Do” list by issues in more complex or larger cases. Divide up responsibility amount staff.
  5. Trial notebook – It will have been built during the case from your deposition notebook Organize trial notebook so it has a logical flow following the order of testimony.
  1. Order of Proof – Trial Roadmap.   What you need to prove, how you need to prove it, witnesses and exhibits.           
  2. Key pleadings (Petition, Answer, Counter Petition, Answer to Counter Petition)
  3. All Orders.
  4. Key discovery – Answers to Interrogatories, Answer to Request for Admissions.
  5. Tab for each witness, your case, opponent’s case. 
  6. Exhibit List (including summaries).
  7. Law including Trial Memorandum for Court.
  1. Exhibit notebook. Mark exhibits before final hearing.   Stipulate to authenticity and administrative before final hearing as much as possible to streamline presentation. The Judge will appreciate that.
  2. Prepare witness examination well in advance.
  3. Summarize data.  Notice of Intent to Use Summary and attach summary.
  1. Rules Applicable to Trial.
  1. Summary Judgment.  Rule 12.510 Florida Family Law Rules of Procedure and Rule 1.510 Florida Rules of Civil Procedure.                                                 Efficient procedure for prompt disposition of actions if no genuine issue of any material fact and moving party entitled to judgment as matter of law.   Purpose to secure just, speedy, and issue “determination of action.” Example, used where there was a paternity issue in a divorce action.
  2. Rule 12.200 Case Management and Pretrial Conferences.  Provides orderly method for just, speedy and responsive determination of issues and promote amicable resolution of disputes.   Use to solve anticipated problems.   Raise evidentiary and legal issues, at Pretrial Case Management Conference.  Replaces and substantial expands FRCP 1.200 (Pretrial Procedures) as pertains to family law. Court may require case management conference at any time and party may request 30 days after service of petition or complaint.  Reasonable notice for Case Management Conference. Twenty (20) days notice for Pretrial Conference.       
  1. Case Management Conference of Family Law Proceedings.
  1. Set or reset time of trials, subject to Rule 12.440.
  2. Pursue possibility of settlement.
  3. Require filing of preliminary stipulations if issues can be narrowed.
  1. Pretrial Conference.   Bring problems in a case to the attention of the court early.
  1. Proposed stipulation and simplification of issues.
  2. Amending pleadings.
  3. Obtain admissions of fact and documents avoid.
  4. Limiting number expert witnesses, unnecessary proof.
  5. Present any matter prepare parties for trial and expedited resolution.
  6. Reciprocally exchange and file all documents relative to outcome of case.
  7. List all witnesses, issues to be tried and undisposed of motions estimate of time needed to try case.
  1. Case management and pretrial order.  Court shall make an order reciting action taken at conference and stipulation made.   Which controls subsequent course of action”.
  1. Rule 12.440 Setting case For Trial. Rule 1.440 governs with following exceptions and additions:
  1. Setting For Trial.  If court finds action ready to be set for trial, order fixing date of trial and pretrial conference.   Trial set within reasonable time from service of notice.
  1. Rule 12.407.  Testimony And Attendance of Minor Child.  No minor child brought to court to appear as witness or attend hearing or subpoenaed to appear at hearing without prior court order based on good cause unless emergency situation.”
  2. Rule 12.363 and 365.  Testimony Of Expert In Custody Evaluation.
  3. Rule 12.410. Subpoena.
  4. Rule 12.400 and Rule Judicial Administration 2.051. Confidentiality of Records.
  1. Key evidentiary statutes.
  1. Privileges, Florida Statutes, § 90.501-510.
  2. Hearsay, Florida Statutes § 90.801-806.
  3. Testimony of Children, Florida Statutes § 92,53-92.55
  4. Judicial Notice, Florida Statues, § 90.201.
  5. Opinion testimony Of Lay Witnesses, Florida Statutes, § 90,701.
  6. Testimony by Experts, Florida Statutes, § 90,702.
  7. Summaries, Florida Statutes, § 90.956.
  8. Admissibility of custody evaluations. Florida Statutes § 61.20, Rule 12.363(e)
  1. Trial Tips:
  1. Order a court reporter.
  2. Follow your Trial Roadmap.
  3. Get a good night sleep the night before trial.
  1. Final Judgment Or Decree Of Divorce.
  1. Prepare a proposed Final Judgment at least two (2) weeks before final hearing. It will force you to identify what facts you need to prove, and evidence to present to support your findings of fact.  (Attachment M, N, O, and P.)
  2. Full financial disclosure. Rule 12.540, Fla. F.L.R.P. No time limit to bring action to set aside final judgment based upon fraudulent financial affidavit.          
  3. Many of same principles as with preparation of agreement. 
  4. Incorporate provisions distributing retirement benefits:
  1. Military retirement benefits, 10 U.S.C. § 1408.
  2. Qualified pensions, profit-sharing, and survivor benefits, 26 U.S.C. § 401(a)(13) and §§ 414 and 415.
  1. Remember continuation of coverage under group health plans (COBRA), 29 U.S.C. § 1161-1169, 42 U.S.C. § 300 bb-3-300 bb-g.
  2. Income Deduction Orders.
  1. Post-Divorce Issues.
  1. “Rule 1.530 Motion New Trial and Rehearing Amendment of Judgment.  Serve not later than 10 days after date of filing of judgment.”
  2. Qualification of retirement plans and survivor benefits (do not close file until all QDROs are “qualified”).     
  3. Modification (be sure you have documented financial status of your own client to opposing client at time of divorce as baseline for alleged changes in circumstances).
  4. Bankruptcy consideration.
  1. Make sure support obligations paid as alimony or child support.   Do not merge into property settlement.
  2. Be paid in full before final hearing.
  1. Contempt and Enforcement Proceedings.
  1. Financial Affidavit in enforcement and contempt proceedings govern by Florida Family Law Rules of Procedure 12.287.
  1. In any proceedings for enforcement or contempt, any party may serve on the other a written request of file and serve a financial affidavit.
  2. Once a written request is made, the financial affidavit shall be filed and served within 10 days unless the court designates a longer or shorter time.
  3. Compliance with the Rule only requires the short form financial affidavit.   Rule 12.902 (b) to be used.
  1. Court Contempt in Divorce Matters.  Rule 12.615, Fla. F.L.R.P
  1. Discovery in aid of Execution. Rule 12.560.
  2. Quality Domestic Relations Order and other Retirement Benefits (including survivor benefits).
  3. Modification. Be sure financial position of parties from divorce carefully documented to prove change in circumstances.
  4. Appeals of family law matters. Special appellate rule in family law cases is set forth at Rule 9.600 (c), Florida Rules of Appellate Procedure.   The Rule provides that during an appeal the lower court has continuing jurisdiction to “enter and enforce.” Orders awarding separate maintenance, child support alimony, or attorneys fees and costs, both at trial level and temporary appellate, or “other awards necessary to protect the welfare rights of any party pending appeal.”

Remember, the Family Law Case never ends until the children reach majority, the term of alimony ends (death or remarriage), and the property is distributed, whichever occurs last.     

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Carolyn S. Zisser

Highly regarded in marital and family law, Carolyn S. Zisser is a well-respected lecturer and author on family law subjects for the American Bar Association, Florida Bar, Jacksonville Bar Association and private legal seminar companies.