How To Modify Your Alimony Payments The Pro Se Self-Help Guidebook Series www.panama-publishing.com

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The Pro Se Self-Help Guidebook Series
How To Modify Your
Alimony Payments
Panama Publishing, Inc.
www.panama-publishing.com
Books by Panama Publishing, Inc
Pro Se Self-Help Guidebook Series:
How To Modify Your Alimony Payments
How To Defend Yourself In Contempt Of Court Hearings
How To Appeal In State Court of Appeals
Jail: An Inmate’s Survival Guide
The above books are available on our site at:
How To Modify Alimony Payments
Copyright © 2007 by Panama Publishing, Inc.
All rights reserved. No part of this book may be used or reproduced in
any manner whatsoever without written permission, except in the case
of brief quotations embodied in critical articles or reviews.
ISBN: 978-0-9800470-1-1
First edition: October 9, 2007
Pro Se Self-help Guidebook Series
How To Modify Your
Alimony Payments
????????
Panama Publishing, Inc.
Table of Contents
Preface................................................................................................. 1
Introduction ........................................................................................ 3
What Are Considerations For Modification of Alimony?............. 8
When Should You File To Modify Alimony? ............................... 13
Preparing To Do Your Own Legal Work ...................................... 16
Unbundled Legal Services ............................................................. 22
Typical Documents Used In Modifying Alimony......................... 23
Supplemental Petition For Modification Of Alimony ................ 26
Clauses For Petition ................................................................... 27
Discovery Documents.................................................................... 28
Std Family Law Interrogatories for Modification Proceedings . 29
Notice of Production from Non-Party........................................ 29
Request to Produce .................................................................... 31
Motions .......................................................................................... 31
Motions to Dismiss .................................................................... 34
Motion for Extension of Time ................................................... 35
Motion for Phone Appearance ................................................... 35
Motion for Referral to General Master ..................................... 35
Appendix to Motions ................................................................. 37
Notices ........................................................................................... 38
Notice of Compliance ................................................................ 38
Notice of Hearing Before General Master ................................. 39
Notice of Trial............................................................................ 39
Miscellaneous Documents ............................................................. 40
Certificate of Service ................................................................. 40
Uniform Motion Calendar .............................................................. 42
Tips On Preparing Documents ....................................................... 45
Financial Affidavits ....................................................................... 46
The Ex-spouse’s Financial Affidavit ............................................. 49
Other Useful Strategies.................................................................... 52
Preparing For Trial ......................................................................... 58
Court Procedures............................................................................ 59
Court Reporter ............................................................................... 61
Trial................................................................................................... 64
Procedures In Court ....................................................................... 64
Request For Jury Trial.................................................................... 69
In Closing.......................................................................................... 71
Appendix........................................................................................... 73
Referenced Links ........................................................................... 73
Resources: .................................................................................. 74
Governing Statutes......................................................................... 75
F.S. 446.50 Displaced homemakers............................................... 80
Homestead Fraud ........................................................................... 85
Rules of Procedure..................................................................... 87
Relevant Caselaw........................................................................... 97
Acker v. Acker ............................................................................ 97
Buxton v. Buxton ........................................................................ 98
Carls v. Carls............................................................................. 98
Duttenhofer v. Duttenhofer ........................................................ 99
Elliott v. Elliott............................................................................ 99
Gerthe v. Gerthe....................................................................... 100
Gruber v. Gruber ..................................................................... 100
Jaffy v. Jaffy ............................................................................. 103
Olsen v. Olsen .......................................................................... 104
Pimm v. Pimm .......................................................................... 104
Sisson v. Sisson ........................................................................ 105
Sussman v. Sussman................................................................. 105
Vega v. Swait............................................................................ 105
Woolf v. Woolf.......................................................................... 105
Disclaimers
The author is not a lawyer or in any way connected with the
legal profession and you need to know the following by way of a
disclaimer:
The information contained in this guidebook is provided solely
for entertainment, educational and informational purposes. It is not
intended to provide specific legal advice or is it a solicitation for legal
work. You are always advised to seek the services of an attorney.
The events, situations, or suggestions mentioned in here are the
results of the author’s personal experiences and opinions in filing
documents on a pro se basis. This book evolved from his lack of
knowledge of the procedures and requirements of the court system
along with his desire to learn what he needed to know in order to
represent himself.
This book makes no attempt to offer any legal advice but if you
see something that is helpful, take it and use it to your best advantage.
It is mainly a compilation of observations and techniques that have
been acquired through extensive practical experience. All items are
factually correct to the best of his knowledge and the opinions
expressed are solely those of the author.
Dedicated to Dick Lindsey of The Alliance For Freedom From
Alimony, Inc., (www.alimonyreform.org) with his team of Freedom
Fighters and to all the unfortunates suffering under the burden of
lifetime alimony.
“But how is...legal plunder to be identified? Quite
simply. See if the law takes from some persons what
belongs to them, and gives it to other persons to whom
it does not belong. See if the law benefits one citizen at
the expense of another by doing what the citizen
himself cannot do without committing a crime. Then
abolish this law without delay, for it is not only an evil
itself, but also it is a fertile source for further evils
because it invites reprisals.”
-Frédéric Bastiat
Preface
W
hat is Pro Se? It is Latin "for himself," "on one's own
behalf" A person who represents themselves in court alone
without the help of a lawyer is said to appear “pro se.”
The Pro Se Self-help Guidebook series are written mainly for
the benefit of the person who doesn’t know their way around the legal
system, who doesn’t have the ability to afford a lawyer, and who has
no other avenue of help other than to try to face the court by
themselves.
Even if you can afford a lawyer, you can use this book to help
you to understand the process and procedures involved with modifying
alimony. It will provide a way to help you be aware that your lawyer is
covering most all the bases in order to reduce your support payments
and by showing you some of the techniques that are available to help
you to reach your alimony reduction goal.
The goal of this book is to provide enough information to
enable you to file a Supplemental Petition for Modification of
Alimony along with the related documents and to understand some of
the other documents with which you might become involved.
Additionally, it will help prepare and guide you for the trial where the
judge will render a ruling as to whether or not to reduce your alimony
payments. If you can get a favorable ruling, you could end up saving a
lot of money.
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Preface
This book evolved as a result of the author’s experiences with
his own as well as other individual’s cases involved with the reduction
of alimony payments that had become unbearable and unsustainable.
It was felt that these experiences would help others because a
lot of the things that were learned were not readily available but only
found through trial and error. This is not the best way to learn the legal
process.
In this situation, knowledge is power and it will definitely help
you to know the rules and procedures involved. This book will educate
and guide you.
While this guidebook will not answer your every question or
handle every situation, it will provide a basic understanding to help
you through a straightforward basic modification procedure that
should prove successful in the event you have a legitimate reason for
modifying your alimony payment. To a judge, having a “substantial
change of circumstances” is a legitimate reason. A permanent change
is even better.
As the writer of this book, I am not a part of the legal system
but one of its victims. My objective is to see that others are made
aware of how to fight back on a pro se self-represented basis by
relating my experiences.
A website has been set up to support the chapters in this book
at: www.panama-publishing.com where you will find samples of
documents, caselaw, related links, new developments, etc. as further
illustration of the examples in this book. Be sure to check for new
developments or updated information periodically.
Table of Contents
-2-
Introduction
“Nothing can stop the man with right mental attitude
from achieving his goal; nothing on earth can help the
man with the wrong mental attitude.”
--Thomas Jefferson
I
f you are looking for a good reference on how to learn the
mechanics of filing a Supplemental Petition For Modification Of
Alimony (SPMA) plus learning some tips and techniques in the
process, you have acquired the right publication.
If you want to learn how to be able to do all the work by
yourself and learn how to not rely on high paid professionals to do
something that you can essentially do yourself, you have the right
publication.
If you want to apply yourself to be educated with a bit of legal
knowledge and take charge of your present situation instead of being
led by the hand by others and accepting whatever handouts are given
to you by the other side, you have the right publication.
If you want to stop being on the defensive with the other
lawyer harassing you, to change the dynamics of the case, and to go on
the offensive, you have the right publication.
If you want a guarantee that if you use the information in this
book that you will reduce or eliminate your alimony payments, you’ve
got the wrong book. I’m afraid there are no guarantees like that.
In the family law system, you have no guarantees and anyone
that says they can give them to you—I would suggest that you run
away as fast as you can. Like everyone else, you will have to take your
chances that the judge will rule in your favor. Whether or not they will
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Introduction
decide in your favor will depend a lot upon how you present your
arguments and your case to them.
The information presented in this book is based on the laws of
Florida where the events took place. The laws may vary a bit in other
states but the procedures are basically the same. If you live in another
state, you will need to study the statutes and case law for your
particular state to be able to use them in your documents.
In family law, the term “support” encompasses two forms,
child support and spousal support (alimony). While on occasion, they
might go hand-in-hand; they are two entirely separate subjects. This
book concerns itself entirely with spousal support a/k/a alimony and
the subject of child support is beyond its scope. Each state has definite
guidelines for the administration of child support. For alimony, that is
another matter.
Keep in mind that there are a few states that treat alimony
differently. The ones that come to mind are Texas, Indiana, Alaska and
Maryland. These states are not as liberal with alimony benefits as the
rest of the country and have shorter time periods for which you will be
required to pay alimony obligations. They usually provide a short
period of “rehabilitative” support payments to enable one spouse to
become self-sufficient. Consider yourself lucky if you live in one of
these states.
The most egregious form of alimony is the one imposed on an
unlucky spouse for the indefinite period of a “lifetime.” Truly, in this
case, will part of the marriage oath which says that “until death do
you part” apply. That is to say that the death of either spouse is the
only “sure” event that will terminate the lifetime alimony obligation.
The imposition of “lifetime” alimony is the one thing that
prevents the “closure” of an unfortunate event in a married couples
life, namely, that of a marriage gone bad. It prevents both spouses
from getting on with their life and returning to some semblance of a
normal life from that point on.
Lifetime alimony is a tragedy of today’s society that plays a
major part in the destruction of the institution of marriage in America.
Spouses receiving alimony apparently don’t want to get married again
for fear of losing that welfare payment and the spouses paying alimony
hesitate to get remarried because of the court’s lifelong jurisdiction in
their lives and the financial hardships they impose.
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Introduction
In addition, many men of marrying age can see, from what has
happened to other men, that they are facing the possibility of financial
suicide resulting from a divorce and they see what the family law
system has done to divorced men by separating their children from
them along with imposing other indignities.
However, here we will be concerned with the fact that the court
has ordered you to pay alimony and that the payments are now putting
a crimp into your lifestyle due to financial reversals or some other such
happening.
Things that you will encounter in the family law proceedings
will give you the impression that they “aren’t fair” or that “that can’t
happen in America.” Don’t waste your time trying to delve into the
philosophical aspects of these thoughts. In family law, you will find
that all the things that you have come to believe in as regards “justice
and fairness” will appear to have been abandoned and that the family
law system is a place where you can spend in limbo for possibly the
rest of your lifetime.
Instead, concentrate on spending your time working within the
system to defend and protect yourself, your assets and your peace of
mind. The reality of the situation is that the rules are in place and you
will have to find your way to work within them and around them to
your advantage. Just knowing what you are capable of doing and
knowing the rules of the road will take a big load off your mind.
Keep in mind that even though the other side is supposed to
play by the rules, they don’t always and they will try to use your
ignorance of the law and the fact that you are representing yourself
against you. By learning the rules and procedures, you can then use
them to fight back and this should surprise the devil out of them.
One of the things I have found regarding lawyers with whom I
have had opposing me is that they tend to be use to working with other
lawyers or dealing with pro se opponents who don’t know the rules.
Working lawyer to lawyer, I feel they make some common mistakes
knowing the other side won’t say anything. With a pro se opponent, it
appears they make the same mistakes thinking that the pro se won’t
know any better and will be overwhelmed with technical jargon and
procedures. This overconfidence can work to your advantage.
Remember: Knowledge will be your ally and your companion
in battle! Knowledge can be acquired if you commit yourself to the job
of doing so. You are off to a good start by reading this book.
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Introduction
The laws and the procedures are not rocket science nor are they
life threatening as if you were going to do major surgery. The worst
that will happen is that the judge will rule against you and you will be
back where you started. But if you are acting in good faith and can
follow the simple guidelines presented herein, you will put the odds in
your favor of prevailing.
With a little effort and participation on your part, you will be
able to save a lot of money in legal fees (that you probably cannot
afford in the first place) in addition to getting a better understanding of
the legal process and gaining control over your situation.
If you decide to proceed with a pro se representation of
yourself, what you will be saving in lawyer’s fees, you will have to
compensate for by putting in the time to learn and create your own
documents. One of the main advantages of learning is that it will take
you out of the dark about legal procedures and put you on a more even
footing with the other side.
Don’t bother to ask any of the court sponsored “self-help
centers” or clerks of the court anything about the law as all you will
get are statements to the effect that: “we are not allowed to give out
any legal advice” which are a cop-out and designed to cut off your
questions. There is very little help available for people who can’t
afford a lawyer and are trying to represent themselves.
There are a number of places where you can go for assistance
from people who have run the gauntlet of the family law courts and
who belong to Internet forums. You will be surprised at the amount of
help you can get from these. One of the foremost ones in the country
can be found at: http://groups.yahoo.com/group/cflap_org/. Others can
be found in the appendix.
Author’s Note: While Florida is used in many examples; the
same laws and procedures could just as well apply to other
states. You would need to check them first.
In addition, you will find the web a good source of
information, especially if you use something like Google or other
major search engine to find what you are looking for.
Now you are ready to understand the essentials of modifying
your alimony payments. The first thing you need to find out is if and
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Introduction
when will you be able to file for a modification of alimony which will
be discussed in the next chapter.
Table of Contents
-7-
What Are Considerations For
Modification of Alimony?
W
hat will the judge be looking for in order to give you a
favorable ruling to reduce your alimony payments? What
will convince them that you are in immediate need of
financial relief?
One of the first things the judge will look at is whether or not
you willfully do not want to pay or are intentionally causing yourself
to have an inability to pay. They will want to see that you have been
making a “good faith” effort to comply with the original court ordered
payments. You definitely need to convince them of this fact. In
addition, you have to provide evidence that you are “unable to pay.”
One of the key phrases with which you need to be acquainted
with and the one which is the standard upon which judges are
supposed to base their ruling is “a substantial unforeseen change in
circumstances.” according to Florida Statutes (F.S.) § 61.14 (1)(a).
(See Appendix)
You have to understand that this means in order for you to have
a chance at reducing your alimony, your financial situation had better
be in worse shape now than they were when you were divorced. If they
are anything else other than that, read no farther. It won’t do you any
good to pursue this matter unless you can show that your ex is
cohabitating with another in a “supportive relationship” or has a
diminished need for alimony.
As a matter of fact, it might make things worse if they find out
you have improved your financial situation. If you will look at your
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What Are Considerations For Modifications of Alimony
final order of dissolution from the court, it will probably say that
something to the effect that “this court retains jurisdiction to render
further orders.” That means if the other party finds out your situation
has improved, there is a good chance that they will file a counter claim
to your modification request and ask for an increase. If this is the case,
it is better to leave a sleeping dog alone.
Author’s Note: The legal citations (cites) that follow
are important cases (at the time of this writing) with
which you should become familiar as part of your
learning process. An example of a case cite is: Chastain
v. Chastain, 73 So.2d 66 (Fla. 1954); § 61.14(1), Fla.
Stat. (Supp. 1988).
They will seem strange to you now, but after reading this
book, you will come to better understand their use. For now,
just ignore them and come back to them at a later time. You
will most likely be using them in your filed documents. More
about case cites will be found in the “Preparing To Do Your
Own Legal Work” chapter.
The court looks to the following when filing a Supplemental Petition
for Modification of Alimony (SPMA):
“in petitioning to modify alimony, the moving party
must show three fundamental prerequisites. First, there
must be a substantial change in circumstances. Chastain
v. Chastain, 73 So.2d 66 (Fla. 1954); § 61.14(1), Fla.
Stat. (Supp. 1988).
Second, the change was not contemplated at the time of
final judgment of dissolution. Withers v. Withers, 390
So.2d 453 (Fla. 2d DCA 1980), review denied, 399
So.2d 1147 (Fla. 1981).
Third, the change is sufficient, material, involuntary,
and permanent in nature. Servies v. Servies, 524 So.2d
678 (Fla. 1st DCA 1988).
Author’s Note: The case cites indicated above and in the
following chapters can be found in their entirety on the support
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website. Take time to read them to get a better understanding
of case cites and how they are used. Research the cases for any
changes to be sure they are still current and haven’t been
superseded with newer cases.
In addition, there are other factors which the judge will be
looking for and which you need to see if they apply in your situation:
You must definitely show proof that you are not
deliberately seeking to avoid the payment of alimony and are
acting in good faith and being diligent in searching for
comparable employment. See Austin v. Fernandez, 898 So. 2d
118 (Fla. 3d D.C.A. 2005).
You must also show that the "clean hands" doctrine (see
Woolf v. Woolf in Appendix) does not prevent the court from
relieving you of a support obligation merely because the
decrease in your financial ability was brought upon voluntarily.
This element of proof must also include evidence of good faith
attempts to find other employment including multiple job
contacts and association with a headhunter or other
employment service.
If you are currently married with a second spouse, the
financial status of your second spouse is generally not relevant
in an alimony modification proceeding. There is an exception,
if it can be shown that you have deliberately limited your
income for the purpose of avoiding or reducing your alimony
payments and you are living largely from the income your
second spouse. Vega v. Swait, 4D07-932 (Fla.App. 4 Dist. 8-12007)
Alimony may be terminated or reduced depending upon the
your ex-spouse’s receipt of substantial inherited property or
funds. Selembo v. Selembo, 591 So. 2d 1112 (Fla. 2d D.C.A.
1992).
Gifts made to your ex-spouse, which generate substantial
income, may also be considered in a modification of alimony
- 10 -
action. Rosen v. Rosen, 528 So. 2d 42 (Fla. 3d D.C.A. 1988),
disapproved on other grounds, 696 So. 2d 697 (Fla. 1997).
To terminate rather than reduce an alimony obligation, you
must prove either a permanent inability to pay the amount
ordered or an inability to pay any amount. In the alternative,
you must allege and prove that your ex-spouse is well able to
support themselves through their own efforts or financial
resources. A good move is to plead both for a reduction and
termination.
F.S. 61.14(b)1, 2a-k, and 3 became effective July 1, 2005.
This statutory change authorizes the court to reduce or
terminate alimony based upon a finding that a "supportive
relationship exists between the your ex and the person with
whom they resides." The statute then goes on to enumerate
many factors as already provided for by the case law.
Unfortunately, it leaves many questions unanswered as to
whether or not you can prove the existence of this relationship
as defined by the statute. See Buxton v. Buxton, 2D06-5358
(Fla.App. 2 Dist. 9-5-2007)
A change in your income and employment must not have
been foreseeable or contemplated at the time of entry of the
final judgment. If so, your petition for modification is subject
to being involuntarily dismissed. Similarly, where the evidence
shows that your standard of living has not declined nor has
ability to pay changed in any significant manner, your petition
will most likely be denied.
You are cautioned to seek just a temporary modification
when there has been only a temporary reduction in your
income. By filing for it, you are showing an exercise of good
faith, and not showing any deliberate intent to avoid paying the
alimony obligation. This should be done as soon as possible
after your income reduction to avoid retroactive arrearages.
If you own a business, there is a strong requirement for you
to provide evidence showing a decrease in your income that
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must be made before a modification is granted. The standard is
much stricter in this regard as the courts look at a
businessperson who can easily record a drastic fluctuation in
income or expenses or by voluntary choice to put off sales,
orders, and commissions. Thomas v. Thomas, 589 So. 2d 944
(Fla. 1st D.C.A. 1991).
If you own a subchapter S corporation, something to
consider is the question of pass-through income which is not
being distributed to the shareholder-former spouse, but instead
is being retained by the corporation for business purposes and
which, does not constitute definable income within the
meaning of F.S. §61. When the issue of the pass-through
income being retained is contested, the shareholder has the
burden of proving that such income was properly retained for
corporate purposes rather than to avoid alimony obligations by
reducing your amount of available income. The court will
probably analyze the factors governing prior distributions, the
history of the business, and past action of the corporation
retaining such income.
If you show that you abandoned a well-paying position in
order to open your own business, and in order to keep it afloat,
used savings and borrowed money, which caused you to go
into bankruptcy, is of little use to the court in order to terminate
your alimony obligation simply because they don’t feel it is a
permanent situation. At best, you are entitled only to a
temporary reduction in alimony since you are considered not to
have made a good faith attempt to obtain better employment
and rectify the deterioration in financial circumstances. Income
might be imputed to you anyway. (See Brown v. CannadyBrown, 954 So.2d 1206 (Fla.App. 4 Dist. 2007)
Is retirement at age 65 considered a permanent change?
The Florida Supreme Court in the case of Pimm v. Pimm, 601
So.2d 534 (Fla. 1992) indicated in the affirmative, but
tempered this with the statement that it is to be considered
along with other relevant factors. They labeled a desire to
voluntarily retire prior to age 65 as precluding a reduction or
- 12 -
termination in alimony. The court will determine if retirement
is voluntary or involuntary and is reasonable under all of the
circumstances and whether or not the unilateral choice would
place the ex-spouse in dire financial circumstances.
Where the evidence shows that your standard of living has
not declined nor has your ability to pay changed in any
significant manner, the court will surely deny your petition.
If your change in circumstances is only for a temporary shortterm basis, it might behoove you to see if you can work something out
with your ex-spouse on some sort of reduced payment plan. For your
protection, be sure to get a notarized agreement from your ex or some
sort of document from their lawyer confirming their consent.
Another factor of which you should be aware is whether or not
you made any sort of a settlement agreement in divorce process. The
courts look at those like they are written in stone unless you were
protected with a clause that says the agreement is modifiable under
certain conditions or that there was no prohibition of a later
modification.
If you feel you can meet the above conditions to qualify for a
reduction, then you have a chance to find relief by filing a
Supplemental Petition For Modification Of Alimony (SPMA).
Lastly, don’t forget that by reducing your alimony, you are
losing a tax deduction. Considering your present tax bracket, this
might be a something to think about.
Now that you know what the court will be looking for and have
decided that you have a good chance to prevail in court, then what is
the optimum time to file your petition to modify alimony? The next
section will tell you.
When Should You File To Modify Alimony?
You should do it as soon as you realize that your “substantial
change in circumstances” will be lasting for a long extended period
of time. Do not wait to file your petition until you have used up all
your money and assets.
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If, for some reason, you are unable to make your alimony
payments and fall behind, there is a good chance your ex-spouse will
file a “motion for contempt” requiring you to prove to the court why
you should not be held in contempt and sanctioned for your actions.
One of those sanctions is the possibility of incarceration until you pay
up. Therefore, it is important to keep these payments current as best as
possible until you can file your paperwork.
Rather than send a check to your ex, alimony payments in
Florida (as well as most other states) can be made through the State
Disbursement Unit (SDU). (See link in appendix) It is good practice to
do this as it there should be no question of payments credited to your
account. The SDU can take payments directly out of your bank
account. The SDU receipts you receive and your bank statements will
give you all the proof of payments you need.
This will establish a good paper trail of the history of your
compliance with any court ordered alimony payments to show the
court in the event you need to do so. It will make a good impression
with the court to show that you have made every effort to comply with
the court order.
If you receive a motion for contempt, a good reference book on
this matter is The Pro Se Self-help Guidebook Series “How To Defend
Yourself In Contempt Of Court Hearings.” (available at
www.panama-publishing.com) The title should be self-explanatory.
Author’s Note: Before you file any papers with the court, you
want to make sure that your assets, bank accounts, retirement
accounts, etc. that could be used to turn into cash in order to
make your alimony payments reflect your diminished financial
status. The judge will look to those items first in order for you
to satisfy the court order. This holds true whether you are
looking to reduce your alimony payments or avoid contempt of
court for non-payment of alimony.
Ideally, what you have in liquid assets should show that you
are having difficulty maintaining a modest standard of living as
shown on your financial affidavit by a (hopefully) negative
cash flow. This will be explained in more detail in a later
chapter.
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You can file the petition for modification of alimony at any
time in the proceedings—even if a motion for contempt has been filed
against you. No matter how long it takes before the judge rules on the
petition, the ruling is retroactive back to your date of filing the SPMA.
Make an objective decision before filing for a modification to
reduce alimony. It might be to your advantage to have a conference
with your ex and their lawyer in the hope of arriving at an agreeable
compromise or mediation prior to filing suit. File the action only if
there is a preponderance of the facts and case law in your favor and
you have a definite inability to make the payments. Otherwise, forget
it as it could end up being too risky, time consuming, and expensive.
After considering the above factors and you feel that you meet
the criteria for filing a petition, you can then move on to the first step
shown in the next chapter on how to prepare to represent yourself on a
pro se basis.
Table of Contents
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Preparing To Do Your Own Legal Work
L
egalese might seem like a foreign language written by
someone with a more convoluted mind than a Rube Goldberg
contraption and written in old English text. Will you be able to
learn it? There’s a good chance you will. It’s important that you do.
One of the things that will definitely help you in dealing with
the lawyers and courts is to learn as much about the legal jargon and
procedures as you can so that you can know what you are doing when
you prepare your documents and when you appear in court. Unless you
can take an accelerated course in how to become a paralegal, the next
best thing is to get some simple layman-language books that will help
you in this area.
The ones that I found to be most helpful are the following:
1. Legal Research by Elias & Levinkind
2. Represent Yourself In Court by Bergman & BermanBarrett
3. Nolo’s Deposition Handbook by Bergman & Moore (if you
plan on taking depositions)
You can find these books either at www.panamapublishing.com or your local library might have a copy you can
borrow.
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The first book that you should read is “Legal Research” as it
will teach you the “language” of the legal system and show you how to
go about researching statutes and caselaw. This will clear up a lot of
mystique of what you will be involved with in the legal documents you
will receive or create.
After reading this book, you will have a clearer understanding
of what you are doing and will be ready to do some researching on the
laws. All the laws pertaining to how the courts will be guided in
making their rulings can be found either in a state’s statutes or caselaw
citations (cites.)
Case Law
What is case law? Once a court determines what the law is on a
given issue (for example, when it determines what a given statute
means), it applies the law to the facts of the case before it, and issues
its decision.
Case law is law made by courts in published decisions called
opinions. Only published opinions may be considered "precedential,"
meaning they have become "law." When a case is precedential, other
courts within that jurisdiction are bound to apply the rule and
reasoning expressed in the opinion, to ensure certainty and uniformity
in the administration of the law. However, courts may depart from
precedent for compelling policy reasons, or where the facts of one case
are significantly distinguishable from the other.
In most cases, courts are called upon to interpret and apply
statutes, however, judicial opinions also continue to define and
develop what is known as the "common law." Common law is a body
of law that was first developed in the English courts based on custom
and general principles, and set forth in court opinions. In time, much
of the common law was put into statutory form, or "codified," so now,
many common law principles are represented in our statutes. Some
states have much more codified law than common law, such as
California, which has a statutory code to cover almost every aspect of
human existence! Where there is no controlling statute, however, the
common law, found in published court opinions, establishes what the
law is.
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Court opinions are published in bound volumes called
reporters, some of which contain the decisions of a single jurisdiction,
while others contain the decisions of several courts, grouped together
by geographic region. The citation that corresponds to a published
opinion consists of the reporter volume number; the abbreviated name
of the reporter, and the page number on which the case report (the
opinion) begins. The year the decision was rendered also typically
follows the citation, and appears in parentheses. As an example, here is
a case cite you might have heard mentioned in your family law case:
Bowen v. Bowen, 471 So.2d 1274 (Fla. 1985). Here’s how it is broken
down:
• Bowen v. Bowen – indicates the parties to the case. Plaintiff v.
Defendant in the lower court and in the appeals court Appellant v.
Appellee.
• 471 So.2d 1274 – indicates the place where the legal reference
can be found which is the Southern Reporter, 2nd edition (referred
to as Southern 2nd), page 1274.
• (Fla. 1985) indicates the Florida Supreme Court and was
decided in 1985.
You will be using case law cites to support the arguments (or
statements,) that will be contained in the documents you will submit to
the court or that will be used to show where the opposition arguments
are in error.
For instance, you might be claiming that you have reached the
retirement age of 65 and are now allowed to legally retire. You would
then make that statement of fact in your argument to the extent that
voluntary retirement at age 65 is considered by the courts as a valid
“change of circumstances” and then support it with the cite of Pimm v.
Pimm, 601 So.2d 534 (Fla. 1992) where it states:
“We review Pimm v. Pimm, 568 So.2d 1299
(Fla. 2d DCA 1990), in which the district court of
appeal certified the following question as a matter of
great public importance:
IS THE POSTJUDGMENT RETIREMENT
OF A SPOUSE WHO IS OBLIGATED TO MAKE
SUPPORT OR ALIMONY PAYMENTS PURSUANT
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TO A JUDGMENT OF DISSOLUTION OF
MARRIAGE A CHANGE OF CIRCUMSTANCE
THAT MAY BE CONSIDERED TOGETHER WITH
OTHER RELEVANT FACTORS AND APPLICABLE
LAW UPON A PETITION TO MODIFY SUCH
ALIMONY OR SUPPORT PAYMENTS?
Id. at 1301. We have jurisdiction pursuant to
article V, section 3(b)(4) of the Florida Constitution,
and answer the question in the affirmative.”
Further examples of how to use these cites will be found in the
court filed cases illustrated on the two websites suggested in the
appendix.
Statutes
More than likely, your state will have a website where you can
find the statutes. To find one go to the following website:
http://straylight.law.cornell.edu/states/listing.html
Once you have found the statutes site, locate the section that
deals with the enforcement of support orders. Statute sites usually have
a search box to search the statutes. Again, search on “alimony” and
most likely you will find the appropriate statue with the laws that
govern it.
In Florida, alimony comes under Florida Statutes (F.S.)
Chapter 61. Read it thoroughly and try to understand it, as it will be
your guide.
Rules of Procedure
Next, come the rules of procedure that will be necessary for
you to follow in the coming proceedings. For Florida, the basic rules
of procedure references are:
1. Florida Rules of Civil Procedure (Fla. R. Civ. P.)
2. Florida Family Law Rules of Procedure (Fla. Fam. L. R. P.)
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3. Local court rules (if there are any), which can be found at:
http://www.flcourts.org/index.shtml where you would select the
“circuit courts” to find the one for your county.
These rules of procedure are the “Rules of the Road” under
which the court operates and those which you will need to follow. The
best place to obtain them for Florida is at the Florida Bar Association
website at: www.floridabar.org. Click on the following links:
Publications > Directory & Links > Florida Rules of Procedure.
Download and keep a copy on your computer.
Caution: Since the laws are constantly changing, you will
want to verify that any statutes, rules of procedure or any other laws
you are using are the most current ones. A recent caselaw can
sometimes cause a conflict with an older caselaw. Even the ones
quoted in this book might have been revised from the time of
publishing this book until you read it.
After you have done the above, you will want to move on to
researching case law. Three of the ways to do this, that I have used,
are; 1) your local public library; 2) the law library located at your local
courthouse, and; 3) lexisONE.
In the public library, go to the local library reference area.
They are usually tied into a legal reference vendor such as Loislaw.
The reference librarian should be able to inform you how to access
their service through the public computers in the library.
Here, you will be looking for recent cases that affect the
subject matter of your hearing. When starting the search in Loislaw,
select “caselaw” option then on the next page the state for where you
want to find the cases. Searching the cases is pretty much straight
forward.
Unless you know the particular case cites you are looking for,
it will be advisable to search on “keywords” such as alimony, support,
modification, etc. as explained in the recommended research book.
From the search results, be sure to use the most current cite that fits
your needs.
The cases you will find in your search results contain decisions
relating to and interpreting the laws, which are contained in the
statutes for each state. The judge in your hearing is only interested in
the laws of your state and not that of others. They are considered
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precedential and carry the weight of law established in your state.
Cites from other states will only be considered as persuasive and
nothing else more. Avoid using them unless absolutely necessary.
In using the law library at your local courthouse, you will
probably find a service like Westlaw. Westlaw and Loislaw are
different vendors. With Westlaw, your best bet will be to go to their
site before you go to the law library and peruse their free user guides
on how to use their service. The main one your want to read is the one
on “KeyCite” which allows you to “Shepardize” caselaw. You can do
so by going to www.westlaw.com and clicking on the following links:
Training Options > Westlaw User Guides > KeyCite.
KeyCite will help you to find out if a quoted case law cite
(citation) or statute is current or the “holding” in the case has been
overturned.
In Loislaw, this feature is called GlobalCite and is at the
bottom of the window in a clickable button when you pull up a case
cite. Go to their “Help” section to find out more details.
Author’s Note: When at one of the libraries and you want to
make copies of the documents you find on Loislaw or
Westlaw, an easy way to do it is to use an online email account
such as Yahoo Mail, Gmail or MSN Hotmail if you aren’t able
to access your regular mail server used by your present Internet
Service Provider.
First, you open up your online email account and prepare an
email to yourself. Bring up the document you want to copy in
Loislaw or Westlaw and then highlight and “copy” the text you
want. Then “paste” it into the email that you will send to
yourself. When you get home, you can then copy and paste the
documents from the email into your word-processing program.
At either the public or law libraries, check to see if they have
books or references on “standard motions” that you might incorporate
into your documents.
There is another resource, which will search out caselaw for
the last 5 years at lexisONE. (www.lexisone.com/) On their home
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page click on the “Find Cases for Free” in the center column of text.
You will need to register first, but there is no charge. You can register
as a “private user” when asked for “your organization.” With the free
portion, you will be unable to “Shepardize” any cases.
If you live in another state and need to check the laws
regarding, alimony, etc., you can most likely do it by researching your
state’s statutes and case law by following the procedures in the manner
described above.
Unbundled Legal Services
The Florida Bar Assn. and possibly ones in other states have
what is called Limited Representation, (see full article on
www.panama-publishing.com) which involves hiring an attorney to
help you with part of your case, instead of with your whole case. This
is also referred to as “unbundled legal services.” If you feel that you
can handle most of your case by yourself but would like an attorney to
help you or to represent you in a part of it, you can hire an attorney for
that part alone.
By doing this you can do most of the legwork by yourself and
let the attorney guide you and possibly check over your work.
Another avenue you might consider is to hire a paralegal to
help you. A lot of the secretaries working for attorneys are paralegals
and if they can’t help you, might be able to refer you to one. You can
also look in the yellow pages or check with a local school offering
paralegal courses. Or, you might be able to hire one of the advanced
students or graduates there. The same holds true if there is a college or
university law school nearby.
Lastly, you will need a good word processing program. Widely
used is MS Word. Most courts accept documents created with this and
then e-filed by attaching a Word document to an email. The other
accepted one is WordPerfect.
Armed with the above information you are now ready to move
on to the type of documents that are typically used in modification of
alimony cases. They are listed in the next chapter.
Table of Contents
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Typical Documents Used In
Modifying Alimony
W
hich ones do you file first and what is the sequence of
filing? How many documents you will need to prepare
will depend upon how much your ex-spouse and her
lawyer will want to fight your efforts to reduce the alimony payments.
Rest assured, they won’t give up without a fight of some sort.
The documents shown below are ones that were involved in an
actual case. Don’t let the list overwhelm you. Hopefully, your case
will not be as complicated and you won’t have to use all of them but it
is better to be ready for most every eventuality.
One thing you will find out is that the ways of preparing the
documents are not written in stone. Yet, there are certain basics, which
you need to follow. Some samples are provided on the support website
and the various states usually provides free standard forms on a
website from which you can download them or at the courthouse
where you can purchase them.
For a good website to visit and see examples of the documents
mentioned below and how they were used in an actual case that lasted
over several years, go to www.abolish-alimony.org and look under the
“Legal” items on the menu. It is one of the most extensive and
informative ones that I have found that documents one person’s fight
on a pro se basis from the circuit court up to the Florida Supreme
Court. Another good site is www.alimonyreform.org.
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Typical Documents Used In Modifying Alimony
As you read the instructions for the documents below, you will
see that they refer to either the Fla. R. Civ. P. (Florida Rules of Civil
Procedure) or the Fla. Fam. L. R. P. (Florida Family Law Rules of
Procedure.) You will need to refer to these rules so you can see what is
covered under the rule that is referenced in any of the documents.
Also, the other side will probably be sending you motions,
requests to produce, and other documents quoting particular cites,
rules and statutes. Any time you see them in a document, take the time
out to read them. It will tell you what your responsibilities and
obligations are as well as those of the other side. In addition, it will let
you know what legal arguments on which they will be basing their
allegations.
Since these rules are pretty well delineated, the judges will be
expecting you to follow them. Even though the judges will give you
some leeway, following the procedures will show them that you are
trying to be conscientious in your efforts.
As luck would have it, Florida has a website where the
standard forms are located and they are available for you to use at no
cost. These can be found and downloaded from the following site:
www.flcourts.org/gen_public/family/forms_rules/index.shtml
The downloadable files are presented in “zip,” “exe,” and
“pdf” file formats. Instructions on how to use each type file are given
on the website. Each form you download has the instructions for filling
them out.
Ideally, you will download the zipped file and extract the files
into one of your word-processing directories. Then take the document
and open it in MS Word or similar program. From there you can make
entries and fill out the documents as required.
When you are filling in the document, keep in mind that the
judge is not interested in your philosophy or opinions on the
legitimacy of paying alimony or whatever might be irritating you
about your ex. All he wants are the “facts” of the case. Once the judge
has these facts, they will apply the “law” to the facts of the case.
At all times be courteous to the judge and opposing lawyer.
There are ways to put the other side down, but it has to be done
diplomatically. For instance, you can’t call them a “liar”, but you can
say that they are “misrepresenting the facts.”
The best way to find out typical acceptable wording is to check
out similar documents that have been already filed with the clerk. Take
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a trip to the courthouse to see actual documents that have been filed
there. Take time to read them, it will be a good education for you and
let you see the different styles of the various lawyers.
All the records filed with the court are public records and
anyone can view them or purchase them by simply going to the clerk’s
office in the courthouse. The clerk will tell you their procedures. They
usually have computers where the filed documents can be viewed. If
you want a copy, there is a small per-page charge.
The forms you prepare should be typed or printed in black ink.
Author’s Note: On the first page of the documents you will
file with the court, all the information above the title of the
document is referred to as the “style of the case.” e.g. the name
of the court, case number, and names of the parties.
After completing any of these forms, you should file the
original with the clerk of the circuit court in the county where your
case is filed and have them date-stamped a copy for your records
(unless your local clerk requires otherwise). At the same time, you will
need to send a copy to the other side’s lawyer.
Documents which are mentioned below and which cannot be
found as a standard form on the state website will need to be drafted
by you by adapting one of the documents found on the www.abolishalimony.org or www.alimonyreform.org websites. State approved
forms shown below and which can be found on the state website are
indicated with a form number after the title.
For other states you will need to check for a state website
where they might be found. You can do this by contacting your local
clerk of court. Also, a lot of county courthouses provide a “self-help”
department that can offer you help to some degree. It will be worth
your while to contact the clerk for further info.
Lastly, you need to keep aware of the timing involved with
filing and responding to documents. Normally, there are time limits
imposed on them and you need to read the appropriate Fla. Fam. L. R.
P. or Fla. R. Civ. P. to find out what they are.
It would help if you would prepare a written schedule of when
you need to file a document and when you need to reply to one from
the other side. Also, put it in a reminder calendar to alert you to when
one is due.
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Q Supplemental Petition For Modification Of Alimony
(Form 12.905(c))
The first and main document to be prepared to start the ball
rolling is a Supplemental Petition For Modification Of Alimony
(SPMA), which needs to be accompanied by a financial affidavit. This
form should be used when you are asking the court to change and
modify a current court-ordered alimony obligation. The court can
change an alimony order if the judge finds that there has been a
substantial change in the circumstances of one of the parties. It should
be filed in the county where the original order was entered.
The effect of filing this document is to start the clock ticking in
your favor. The sooner you can do it the better because any ruling, no
matter how far down the line it is decided, will be retroactive to the
date of filing the document.
By filing a SPMA, you will change the dynamics of your case
by catching the opposition completely by surprise and doing
something they do not expect. And, you are entirely within your rights
to do so as long as you can show a “substantial change of
circumstances” financially since your divorce.
In doing so, you will be using the rules of the road to your
advantage. It will allow you to now go on the offensive. The best part
of filing this petition is that it requires both parties to provide certain
information on their financial status. You will thus be able to obtain
valuable information on your ex-spouse’s financial situation that will
give you ammunition to use in your battle.
After you have completed all the documents and the financial
affidavit has been notarized, they need to be filed with the court. To
file the documents, take or mail them to the clerk of the court where
the case is venued. Check with the clerk to verify their filing
procedures and number of copies they will require. They may vary
from county to county.
Normally, you will file an original with the clerk and have a
second copy to keep for your records which you will have the clerk
date-stamp. It is good practice to sign the original in blue ink so you
can visually determine easily that it is an original signature. You must
send a copy to your ex-spouse or their lawyer as specified in your
Certificate of Service (see Fla. R. Civ. P. Rule 1.080), which is
normally on the last page of your filed document.
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Since you are filing the SPMA using the same case number as
was on your final court order of dissolution and is titled as a
“supplemental petition, ” it is considered as a filing in an ongoing case
and there should be no filing fees for this or any other filing associated
with this case number. There is a possibility that if the clerk has
“closed” the case there might be a new filing fee.
Clauses For Petition
These are some useful ones that might apply to your case.
In the SPMA statement of the facts and before the conclusion
or “Prayer For Relief”, you might want to include the following clause
below. It preserves your right for an appeal based on a challenge that
the alimony statutes violate your constitutional rights.
“It is my position that the Florida alimony statutes
violate the state fundamental right of privacy in the
context of personal decisions relating to marriage and
divorce. Also the alimony statute violates the Florida
constitutional separation of powers."
Other Prayer for Relief clauses:
A. Eliminate and/or terminate the requirement of future
alimony payments.
B. (If your ex is earning more money than you): Require
Respondent/Former Wife to pay alimony support to
Petitioner/Former Husband in an amount determined equitable
by the court.
C. Require that payment of all legal fees incurred by
Respondent/Former Wife be her responsibility and not that of
Petitioner/Former Husband.
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Discovery Documents
The next thing you will want to do is to gather up all the
information you can about your ex-spouse. You do this in a process
called “discovery.” Simply put, it is where you request information
from the other side according to the rules of discovery found in the
Fla. Fam. L. R. P. and the Fla. R. Civ. P. in order to prepare your case.
According to the court rules of procedure when filing a supplemental
petition, the other side has to provide certain mandatory information to
you or face contempt of court.
In Florida, the most of the basic discovery documents are
standard forms that are supplied by the state and can be found on their
website mentioned above.
It is almost a sure thing that you will be sent some of these
documents for which you, in turn, will have to comply with a
response. Just answer their questions or produce the requested items to
the best of your ability.
Be sure to read and Fla. Fam. L. R. P. RULE 12.285.
Mandatory Disclosure (see Appendix), which covers the items that the
other side has to produce for you should you request them and the
penalties they will incur if they do not comply.
Author’s Note: Frequently, when the other side knows you are
acting pro se, they will start throwing documents at you
requesting one thing or another. Remember, you can do the
same thing in return. Even if they don’t request anything, it is
important for you to request financial and similar information.
The knowledge of your ex-spouse’s financial status is valuable
in getting your alimony reduced. More will be explained later
on this subject.
Another benefit of doing this is to force the other side to do
some work and be inconvenienced just like yourself. Do not
give them a free ride in allowing them to make you provide the
all the discovery without them doing the same. These are
legitimate requests from you, which are allowed by the rules of
procedure, and there should be no lawyer fees incurred by you
from the other side.
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Q Standard Family Law Interrogatories for Modification
Proceedings
(Form 12.930(c))
After filing the SPMA, this is the next form you will definitely want
to send to the other side. It is the main one that will give you most of the
ammunition you will need for your case preparation. You do not need to file
this with the clerk of court. Instead, you file a Notice of Service of Standard
Family Law Interrogatories form listed next.
This form should be used to ask the other party in your case to
answer certain standard questions in writing. These questions are
called “interrogatories,” and they must relate to your case. If the other
party fails to answer the questions, you may ask the judge to order the
other party to answer the questions by filing a motion to compel. (You
cannot ask these questions until the SPMA has been filed.)
The questions in this form should be used in modification
proceedings and are meant to supplement the information provided in
the Financial Affidavits, Florida Family Law Rules of Procedure Form
12.902(b) or (c).
You should read all of the questions in this form to determine
which questions, if any, the other party needs to answer in order to
provide you with information not covered in the financial affidavit
forms. If there are questions to which you already know the answer,
you may choose not to ask them.
Q Notice of Service of Standard Family Law Interrogatories
(Form 12.930(a))
You would use this form to tell the court that you are asking
the other party in your case to answer certain standard questions in
writing. You do so by filing, in the usual manner, this completed
document with the clerk of courts.
Q Notice of Production from Non-Party
(Form 12.931(a))
These forms would be used if you needed copies of documents
(for a purpose relating to your case) from a nonparty in your case. A
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nonparty is anyone other than the Plaintiff or the Defendant such as an
accountant who has prepared tax documents for your ex-spouse,
banks, financial institutions, investment firms, and the like.
Notice of Production from Nonparty, Florida Supreme Court
Approved Family Law Form 12.931(a), is used to notify the other
party in your case that in 10 days you are going to subpoena
documents from a nonparty. Subpoena for Production of Documents
from Nonparty, Florida Supreme Court Approved Family Law Form
12.931(b), is the actual subpoena directing the nonparty to produce
specific documents. You must file the originals of these forms with the
clerk of the circuit court. A copy of these forms must be mailed or
hand delivered to any other party in your case.
Ten days after you serve the Notice of Production from
Nonparty, Florida Supreme Court Approved Family Law Form
12.931(a), on the other party in your case (15 days if service is by
mail) and they haven’t responded, you should ask the clerk of the court
to sign the subpoena and send it. You should then contact the deputy
sheriff or private process server and have the subpoena personally
served on the person named in the subpoena. You can also send them
by mail, but a process server makes it seem more official.
The Subpoena for Production of Documents from Nonparty (is
included in Form 12.921(a) above) Form 12.921(b))
Q Certificate of Compliance with Mandatory Disclosure (Form
12.932)
Mandatory disclosure requires each party in a dissolution of
marriage case to provide the other party with certain financial
information and documents. These documents must be provided by
mail or hand delivery to the requesting party within 45 days of service
of the supplemental petition for modification on the respondent. The
mandatory disclosure rule applies to all supplemental dissolution of
marriage cases, except cases where the respondent is served by
constructive service and does not answer. You would use this form to
notify the court and the other party that you have complied with the
mandatory disclosure rule.
Each party must provide the other party with the documents
listed in section 2 of the form if the relief being sought is permanent
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regardless of whether it is an initial or supplemental proceeding. Of the
documents listed on this form, the financial affidavit and child support
guidelines worksheet are the only documents that must be filed with
the court and sent to the other party; all other documents should be
sent to the other party but not filed with the court.
Q Financial Affidavit (Forms 12.902(b) & (c))
Both you and your ex-spouse need to fill out one of these. You
will submit a copy of your SPMA along with two copies of the blank
financial affidavit forms to your ex for them to fill out and return one
copy of the affidavit back to you.
This form is available in two versions and should be used
when you are involved in a family law case which requires a financial
affidavit and your individual gross income is either under or over
$50,000. The short form is for income under $50,000/year (form
12.902(b)) and long version is for income $50,000/year or over (form
12.902(c)). After completing this form, you should sign the affidavit
before a notary public or deputy clerk.
Q Request to Produce
Other than what has been mentioned above, the range of what
you can ask for is quite extensive. Fla. R. Civ. P. Rule 1.280. General
Provisions Governing Discovery (see Appendix) indicates the area of
coverage.
Based on this rule, you have the right to seek out most any
information that will help you in your case. All you need do is to
request it.
Motions
Q Motion to Compel (See sample on support website)
This is a powerful tool in your arsenal of offensive tactics.
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When the other side does not comply with your request for any
discovery, a motion to compel should be filed immediately after the
time for a response is past. It is prudent to set a time limit for when
you expect them to be produced if one is not spelled out in the rules of
procedure.
It is very useful to keep a calendar of reminders to let you
know when they are due. The motion is easy to create and the
opposition knows they have to comply or face contempt of court
sanctions. Do not ignore filing these motions as they will keep the
other side working and on the defensive..
You need to become familiar with the way the time for a
response is computed, as it will have an important bearing on when
you will file motions or responses to the other side. The Fla. R. Civ. P.
rule states:
Rule 1.090. Time:
(a) Computation. In computing any period of time prescribed
or allowed by these rules, by order of court, or by any
applicable statute, the day of the act, event, or default from
which the designated period of time begins to run shall not
be included. The last day of the period so computed shall
be included unless it is a Saturday, Sunday, or legal
holiday, in which event the period shall run until the end of
the next day which is neither a Saturday, Sunday, or legal
holiday. When the period of time prescribed or allowed is
less than 7 days, intermediate Saturdays, Sundays, and
legal holidays shall be excluded in the computation.
(e) Additional Time after Service by Mail. When a party
has the right or is required to do some act or take some
proceeding within a prescribed period after the service of a
notice or other paper upon that party and the notice or
paper is served upon that party by mail, 5 days shall be
added to the prescribed period.
Q Motion for Contempt (Form 12.960)
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If the other side does not comply with your motion to compel,
this is the next step to causing them grief and uses the power of the
court to do so. It will also have the advantage of showing the court that
the other side is not acting in good faith.
You may also use this same form to ask the court to enforce the
terms of a prior court order or final judgment. To initiate a civil
contempt/enforcement proceeding against a party who is not
complying with a prior court order, you must file a motion for
contempt with the court explaining what the party has failed to do.
Q Motion for Default (Form 12.922(a))
If the other party has failed to file or serve any documents
within 20 days after the date of service of your SPMA, you may ask
the clerk of the circuit court to enter a default against him or her by
filling out this form and filing it with the court. Generally, a default
allows you to obtain an earlier final hearing to finish your case. Once
the clerk signs the default, you can request a trial or final hearing in
your case.
To obtain a default, you will need to fill out a Motion for
Default, Florida Supreme Court Approved Family Law Form
12.922(a). You will then file your motion for default along with the
Default, Florida Supreme Court Approved Family Law Form
12.922(b), so that the clerk can enter a default for you, if your motion
is proper.
Q Motions to Deny or Object (See sample on support website)
Any time the other side files a motion to request you to do
something or produce something, you can file a motion to deny or
object to their requests. It is very useful to resist them when they do
something to harass you and this is one way to do it.
In doing so, you will need to come up with some good
argument about why you are denying or objecting to their motion.
Otherwise, the judge could assess you lawyer fees if your motion is
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deemed frivolous. Read the caselaw of Yakavonis V. Dolphin
Petroleum, Inc. in the appendix for a definition of frivolous.
If it is a request for information, you can always include an
argument that it is invading your right to privacy, which is guaranteed
by the constitution. However, it is best not to use this in matters of
financial discovery as the financial status of the parties is vital for the
court to make a ruling and they need the facts obtained from discovery
upon which to base their ruling. There is case law supporting the
requirement for financial discovery. Besides, you don’t want the other
side using your arguments against you in certain situations.
Q Motions to Dismiss
These are motions that either side can use. There is always a
chance the other side will file one to your SPMA especially if you
have alimony arrears. Read their allegations and you can possibly file
a motion to deny any of their motions to dismiss.
If combined with some violation of your civil rights clauses
(such as right to privacy) in any of your motions, here is one case cite
that you might be able to use:
“Because the Plaintiff is pro se, the Court has a higher
standard when faced with a motion to dismiss. White v.
Bloom, 621 F.2d 276 makes this point clear and states:
“A court faced with a motion to dismiss a pro se
complaint alleging violations of civil rights must read
the complaint's allegations expansively, Haines v.
Kerner, 404 U.S. 519, 520-21, 92 S. Ct. 594, 596, 30 L.
Ed. 2d 652 (1972), and take them as true for purposes
of deciding whether they state a claim.” Cruz v. Beto,
405 U.S. 319, 322, 92 S. Ct. 1079, 1081, 31 L. Ed. 2d
263 (1972).
Moreover, "the court is under a duty to examine the
complaint to determine if the allegations provide for
relief on any possible theory." Bonner v. Circuit Court
of St. Louis, 526 F.2d 1331, 1334 (8th Cir. 1975)
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(quoting Bramlet v. Wilson, 495 F.2d 714, 716 (8th Cir.
1974)).
Thus, if this court were to entertain any motion to
dismiss this court would have to apply the standards of
White v. Bloom. Furthermore, if there is any possible
theory that would entitle the Plaintiff to relief, even one
that the Plaintiff hasn't thought of, the court cannot
dismiss this case.”
Q Motion for Extension of Time a/k/a as a Motion to Expand
If you find you do not have the necessary time to respond in a timely
manner to requests from the other side, you can draft one of these to
request an extension of time from the court. You need to explain your
reasons therein for the request.
Q Motion for Phone Appearance (See sample on support website)
Phone appearances can be used if it is inconvenient for you to
attend a non-evidentiary hearing. This is one where no evidence is
presented and is just involves a few minutes of the court’s time such as
a motion to compel. Evidentiary hearings don’t normally allow
telephone appearances but it is possible in some cases where people
live out of the state. With this motion, you are asking the court’s
permission to attend by phone.
Being there in person gives you a better chance to interact with
the judge and the opposition. Remember, you want to get the judge to
like you and to hopefully gain their confidence. This is hard to do over
the phone.
You might wonder what the difference is between a hearing
and a trial. Essentially, they are the same thing only a trial last longer
than a hearing. But the procedures in either are usually the same.
Q Motion for Referral to General Master (Magistrate)
(Form 12.920(a))
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A general magistrate is a lawyer appointed by a judge to take
testimony and recommend decisions on certain matters connected with
a divorce. These recommendations are then reviewed by the judge and
are generally approved unless contrary to the law or the facts of the
case. The primary purposes of having general magistrates hear family
law matters are to reduce the costs of litigation and to speed up cases.
Author’s Note: In 2004 the references to the term Masters
were changed to Magistrate. Some of the forms have not been
updated to comply with this ruling.
Either party may request that a general magistrate hear their
case, or portions of their case, by filing Motion for Referral to General
Magistrate, Florida Family Law Rules of Procedure Form 12.920(a).
You must also prepare an Order of Referral to General Magistrate,
Florida Family Law Rules of Procedure Form 12.920(b), to submit to
the judge assigned to your case.
Many times, the court, either on its own motion or under
current administrative orders of the court, may refer your case to a
general magistrate. Even in those instances, you may be required to
prepare and submit an Order of Referral to General Magistrate, Florida
Family Law Rules of Procedure Form 12.920(b), to the judge.
Once a general magistrate has been appointed to your case, the
general magistrate will assign a time and place for a hearing as soon as
reasonably possible after the referral is made. The general magistrate
will give notice of that hearing to each of the parties directly or will
direct a party or lawyer in the case to file and serve a notice of hearing
on the other party. If you are asked to send the notice of hearing, you
will need to use the form entitled Notice of Hearing Before General
Magistrate, Florida Family Law Rules of Procedure Form 12.920(c).
Regardless of who prepares the notice of hearing, the moving party
(the one who requested referral to the general magistrate) is required to
have the notice properly served on the other party.
One of the things to consider in allowing a magistrate to preside over
your case is whether or not you have been receiving favorable treatment from
the present judge. In some cases it is advantageous to have “another pair of
eyes,” such as an appointed magistrate, view your case. If you want to retain
the present judge or don’t want the magistrate to preside for any reason at all,
then all you need do is file an objection to the magistrate within the time
period allotted after your notification of their referral to the case.
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You can object merely by filing a document with the court
saying you object to him. You need not give any reason. Read Fla.
Fam. L. R. P. Rule 12.490 (b)(1)(A). General Magistrates
Q Motion to Strike (See sample on support website)
You will want to read in further detail Fla. R. Civ. P RULE
1.140. Defenses where it states:
(b) How Presented. Every defense in law or fact to a
claim for relief in a pleading shall be asserted in the
responsive pleading, if one is required, but the
following defenses may be made by motion at the
option of the pleader: (1) lack of jurisdiction over the
subject matter, (2) lack of jurisdiction over the person,
(3) improper venue, (4) insufficiency of process, (5)
insufficiency of service of process, (6) failure to state a
cause of action, and (7) failure to join indispensable
parties.
(f) Motion to Strike. A party may move to strike or the
court may strike redundant, immaterial, impertinent, or
scandalous matter from any pleading at any time.
Essentially, this type of motion could be used against you in
response to something that was included in your SPMA. However, you
could use it in response to a motion filed against you if their motion
had any of the above attributes.
Q Appendix to Motions
Author’s Note: Here is an interesting scenario that could
prove useful to you in introducing material to the court at the
last minute. Let’s say that you had filed a motion of some sort
and didn’t want to give the other side much time to consider it
or develop a defense. One technique you might use is to file the
motion but leave out the really “heavy” supporting proof you
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have to make. You then send a notice of hearing at the same
time or at a later date setting the date and time of the hearing.
On the day of the hearing/trial, you would then file the
appendix to the motion with the clerk of court. Somewhere
during the hearing, when it is your turn to make your
presentation, you present a copy to the opposing side
(indicating on the certificate of service that it was personally
served that date) and one to the judge. Now you can proceed
with your case and use it as support. Depending upon what you
have in the appendix, you might have to admit it into evidence.
The book “How To Represent Yourself In Court” indicated in
the chapter on “Preparing To Do Your Own Legal Work” gives
further details on admitting evidence.
Notices
Q Notice of Compliance
Anytime you receive a request for information, records, etc.
and you respond to the other side by sending it directly to them, you
will need to file this notice with the court. It will be essentially the
same form as Form 12.932, Certificate of Compliance With
Mandatory Disclosure indicated above. Just change the title and adapt
it to be in agreement with what you provided to the other side.
This is your proof to the court that you have complied with the
request of the other side.
Q Notice of Hearing (Form 12.923) (See sample on support website)
Anytime you have set a hearing before a judge, you must send
notice of the hearing to the other party. IMPORTANT: If your
hearing has been set before a general magistrate, you should use
Notice of Hearing Before General Magistrate, Florida Family Law
Rules of Procedure Form 12.920(c).
It is good practice to send a copy of this notice to the judge’s
judicial assistant along with any motion(s) that will be heard at the
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hearing. Make note that you can combine a Notice of Hearing with a
Notice of Appearance by Phone on the same document as shown by
the sample in the Appendix.
Q Notice of Hearing Before General Master (Magistrate)
(Form 12.920 (c))
In Florida, this is a standard form that is supplied by the state
and can be found on their website mentioned above.
Q Notice of Hearing on Motion for Contempt / Enforcement
(Form 12.961)
Use this form anytime you have set a hearing on a Motion for
Contempt/Enforcement, Florida Supreme Court Approved Family Law
Form 12.960, for a support matter under rule 12.615, Florida Family
Law Rules of Procedure. Before you fill out this form, you should
coordinate a hearing time and date with the judge’s judicial assistant or
hearing officer and the other party.
Q Notice of Trial
(Form 12.924)
Generally, the court will hold trials (or final hearings) on
contested cases. This form is to be used to notify the court that your
case is ready to be set for trial. Before setting your case for trial,
certain requirements such as completing mandatory disclosure and
filing certain papers and having them served on the other party must be
met. These requirements may vary depending on the type of case and
the procedures in your particular circuit.
In some circuits you must complete mediation or a parenting
course before you can set a final hearing by using a Notice of Hearing
(General), Florida Supreme Court Approved Family Law Form
12.923, or other appropriate notice of hearing form. Other circuits may
require that you set the trial using an Order Setting Trial. Contact the
clerk of the circuit court, family law intake staff, or judicial assistant to
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determine how the judge assigned to your case sets trials. For further
information, you should refer to the instructions for the type of form
you are filing.
For trials and hearings (other than Uniform Motion Calendar
Hearings (UMC) detailed later), the usual procedure is to contact the
judge’s judicial assistant (JA) and request available times for the trial.
You then contact the other side’s secretary and get agreement on one
of the available dates. After an agreement on times, call the JA back
and confirm the date.
In the notice you will prepare, and under the title, indicate that
the date was co-coordinated with opposing counsel’s secretary (give
their name). File a copy with the clerk, send a copy to the opposing
side, and send a copy of the notice along with a copy of any motions to
be heard to the JA.
Q Notice of Phone Appearance (See sample on support website)
In this situation, you are advising the court that you will attend
by phone. You can only do this for non-evidentiary type hearings. For
evidentiary hearings, you need to make a motion for a phone
appearance in order to get the courts permission.
Be sure to send a copy of this to the JA to be sure the judge
sees it prior to either type of hearing and include copies of any motions
to be heard.
Miscellaneous Documents
Q Certificate of Service
(Form 12.914)
After the SPMA petition has been properly served (through
either a personal service or constructive service), both parties must
send copies of all additional documents or papers they file with the
clerk to the other party or his or her lawyer, if he or she has one. Each
time you file a document, you must certify that you provided the other
party with a copy. Many of the Florida Family Law Forms already
have a place above the signature line for this certification.
- 40 -
If a form you are filing has a certificate, you do not need to file
a separate Certificate of Service. Florida Supreme Court Approved
Family Law Form 12.914. However, each time you file a document
that does not have a certificate like the one above, you must file a
Certificate of Service, Florida Supreme Court Approved Family Law
Form 12.914, and send a copy of the document to the other party. This
includes letters to the judge.
All of the documents that you will be filing should incorporate
a Certificate of Service as part of the document and placed at the end
as a last page of your filing. With few exceptions, all the filings can be
made via U.S. Postal Service first class mailing. Use certified mail if
you want to get confirmation of delivery and priority mail (with
optional proof of delivery) if it needs to get there quicker.
After any documents are completed and any financial affidavit
notarized, they need to be filed with the court. To file the documents,
take or mail them to the clerk of the court where the case is venued.
Check with the clerk to verify their filing procedures and number of
copies they will require. They may vary from county to county.
Normally, you will file an original with the clerk and have a
second copy for yourself to which you will have the clerk date-stamp.
It is good practice to sign the original in blue ink so you can visually
determine easily that it is an original signature. You will also need to
send a copy to your ex-spouse or their lawyer as specified in your
Certificate of Service, which is the last page of your filed document.
You will find the Uniform Motion Calendar (UMC) is a useful
tool for setting hearings of a non-evidentiary type and whose duration
only requires up to about 10 to 15 minutes. These are sometimes
referred to by different names in different jurisdictions, but most all
courts have this type of set-up. You will learn about this in the next
chapter.
Table of Contents
- 41 -
Uniform Motion Calendar
(UMC)
T
his is an accommodation by the courts to facilitate use by the
lawyers to get rapid hearings on non-evidentiary type motions
such as motions to compel or other simple motions. The
hearings that are scheduled on the UMC are on a first-come, firstserved basis and not at a definite time.
Here is an explanation of the procedure for one jurisdiction in
Florida:
a) In the 15th Circuit Court of Florida, they hold UMC hearings
on Tuesday through Thursday from 8:45 a.m. until about
10:00. You don’t need an appointment or anything. All you do
is just show up and sign a log-in sheet in the waiting area
outside the courtroom. The criteria here is the judge only wants
to spend about 10 - 15 minutes per motion. You are allowed to
present 1 or 2 motions.
b) When you want to set a hearing, it is good practice for you to
contact the opposing lawyer’s secretary to arrange a mutually
agreeable date. You shouldn’t get much if any objection from
the opposing lawyer as attending the hearing allows them to
bill their client for about 1.5 or more hours of time at around
$300 per hour.
- 42 -
c) You then file your motion (if you haven’t already done so) and
send the other side a Notice of Hearing along with a copy of
the motion. Send a copy of the motion along with a copy of the
Notice of Hearing to the judge’s judicial assistant. Watch your
time limits for reasonable notice. Seven days seems to be good
minimum figure.
d) Show up at the hearing and sign in on a docket sheet at the
door to the hearing room.
When you go to the hearing, be prepared with the following:
a) Copy of the motion for the judge
b) Copies of proposed orders that the judge can sign indicating
that the motion presented at the hearing is “Granted/Denied
(see sample in appendix.)” Give him enough copies so that the
clerk, opposing lawyer, and yourself will all get one. Be sure to
include unstamped and addressed envelopes for the judge to
send out the copies to the parties.
c) Two copies of anything you want to present to support your
argument. One is for the judge and one for the opposition.
d) An outline script of what you want to say. Do not leave your
argument up to chance and try to ad lib it. WRITE IT DOWN!
Keep it short and present your basic arguments for your
motion. Verbally rehearse you script over and over so the
presentation will be fairly smooth in court. I have found that
the judges don’t appear to have read the motions prior to the
hearing, so your verbal presentation will be weighted heavily.
Be ready for any and all types of allegations from the opposing
counsel.
e) Keep your cool. Keep quiet when the other side is talking no
matter what they say. You will have a chance at rebuttal.
However, it doesn’t hurt to nod your head in disagreement
when they are not being truthful. The judge notices this. Be
polite to the judge and if you disagree with him, say something
like “your honor, I respectfully disagree with….” and state
your reasons. NEVER ARGUE WITH THE JUDGE!!!
f) Expect the unexpected. No matter how well you prepare either
the judge or opposing counsel will probably throw something
your way that will confuse you and knock you off your stride.
You are playing on their home ground. They know the rules
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and you don’t. Don’t worry. If you are not sure of something,
ask the judge. They are fairly tolerant of a pro se and will
explain procedures to some extent. If you foul up, acknowledge
it as a good faith error and promise never to do it again.
The more hearings you set, the more the ex will have to pay out
of their own pocket. This technique can work very well when you are
on the offensive if your ex has been negligent in responding to your
requests for discovery or not obeying court orders. It will be a
deterrent to them if they are not playing by the rules, as they should.
Do not give them any leeway in this area unless they have
shown they wish to be reasonable. In most adversarial cases, this is
usually not the situation. They are out to get all they can from you and
are showing you no leniency. Remember, there are a lot of chips at
stake in this game. Don’t give up any more than you have to.
Lawyer fees can for attending hearings can amount to around
$500 per hearing or more. If you have a legitimate hearing and not one
for a frivolous motion, the court should not assess you fees to pay for
the spouse’s lawyer. This is one instance where the other side’s neglect
can cost them.
Now that you are familiar with all of the basic types of
documents that you will encounter, we will next look at some things
you need to consider when filling the documents out so that they work
to your benefit. You need to understand how some of will be used.
This is discussed in the next chapter.
Table of Contents
- 44 -
Tips On Preparing Documents
W
hat should you do with documents received from the
opposition and what do you need to know when filling out
your documents? What is the objective you are trying to
achieve with the court?
The first thing you will want to do is thoroughly read through
any document you receive from the opposition. If it contains any
references to statutes, caselaw, Florida Family Law Rules of
Procedure, or Florida Rules of Civil Procedure, you will need to read
each one and determine whether or not they are accurate. Make sure
what they say applies to you and that their claims and allegations are
valid.
You will also want to see if the rules specify some requirement
that needs to be met that is lacking in their documents. This could
possibly render that document invalid.
By doing this, you will become familiar with the laws and how
they apply to you. In learning this, it will also teach you what you can
demand of the other side. Whether you realize it or not, the other side
will often show you things that you can do and how to do them. Just
copy what they do and then turn the tables around on them. By
knowing the rules, you will know what they can do to you, and what
you can in turn do to them. Learn from your opponents. Then find out
where their weaknesses are.
- 45 -
Never take it for granted that the opposing lawyer knows what
they are doing just because they are lawyers. Check behind them at
every opportunity. Frequently, they have paralegals working for them
and they tend to do things repeatedly without realizing that there might
have been changes implemented of which they were unaware.
A number of times I have caught the opposition in error and
have capitalized on it by revealing their lack of knowledge to the court
in my responsive motions to deny or object. Never hesitate to
capitalize on an opposition’s error by bringing it to the courts
attention. It tends to destroy their credibility and/or competence.
On occasion the opposition will reference case law. Check out
any caselaw citations (cites) that they might use to see if they are
current cases and haven't been overturned. This procedure is also
known as "Shepardizing" and can be found in the book "Legal
Research" referenced earlier. If you go to Loislaw, you can do it with
"Globalcite" and with WestLaw you can use its "KeyCite" features to
do so.
One of the key things of which to be aware is to stay on top of
your filings, deadlines for filings and responses and to keep track of
where you are at all times. One of the ways you can do this is to keep a
“timeline” listing of your filings and due dates. It helps immensely to
keep them on a “reminder” calendar on your computer.
Unless the opposing lawyer has shown that they are “playing
fair” in dealing with you, it is best to not give them any leeway unless
they earn it in some reciprocal manner. You can be sure they will stay
on top of you.
Keep the pressure on for them to perform with filing motions
to compel, motions for contempt, etc. and notices of hearings for those
motions when the time for their response is past.
Financial Affidavits
There are two main things upon which your case should be
focused. The first is your “present ability to pay” and the second is
your ex-spouse’s “need” for alimony. Read the case of Hillier v.
Iglesias in the appendix and on the support website for a good
explanation on the matter.
- 46 -
Your financial affidavit will be the lynch pin upon which the
judge will decide whether or not to continue your alimony at the
present level. That is what you will concentrate on when filling out
this document. Your ex-spouses “need” will be determined from her
financial affidavit and it is this document that you need to tear apart to
show inaccuracies.
If you will recall, when you were divorced, your final judgment
and alimony support payment was based on the financial
circumstances that existed at that time. It was what determined the
amount you had to pay. Whether or not you think you got a fair shake
at the time of the final hearing doesn’t matter now. Now is the time to
prove your case to the judge afresh.
The burden will be on you to convince the judge why your
circumstances have changed and that you have a valid reason not to
continue your support payments. To do this, you will need to provide
certain evidence to establish your claim.
The first thing you will need is a current financial affidavit. For
your entries, be accurate and have back-up receipts, tax records, pay
stubs, etc. to substantiate your entries. You have to do this wherever a
paper trail might exist so that the opposing lawyer cannot discount
your entries.
Your objective here is to present an appearance of complete
honesty with the court. If there is anything that could be deemed by the
court as falsification, they will accuse you of coming to court with
“unclean hands’ and will look down on you very unfavorably.
In preparing the financial affidavit, be sure to take into account
every line item and put something reasonable in there. The objective is
to show that your expenses exceed your income. You want to show
them that you are actually living on a substandard basis due to the
hardship of your payments in relationship to your diminished income
since the divorce.
For those items where no records exist like food, cash outlays
for items, etc., use your best estimate of what they might be with the
notation “est.” next to the amount entered e.g. food – $500 est. This is
an area that some people use to their advantage since it would be hard
for the opposition to prove that “reasonable” amounts are anything
other than that.
Be sure to be thorough in listing the items for the “expense”
category, as there are frequently things you purchase but ignore to
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record. You can probably put them in a catchall category called
“Miscellaneous.”
If you have any judgments against you such as foreclosures or
other money judgments that are recorded in the public records (with
the clerk of court where they were incurred), be sure to include them.
It wouldn’t hurt to make sure that you have copies of them either.
Copies can be ordered from the clerk if you don’t have the originals.
The goal of the financial affidavit is to be able to show that
your expenses and liabilities are greater than your income thereby
giving you a negative cash flow each month. It's all right if your
affidavit shows you have more expenses than income and indicates a
negative cash flow.
The purpose of this financial affidavit is to substantiate your
claim that you do not have the ability to make your alimony payments
based on your present income and standard of living. All you need do
is to have an explanation to give the court in the event you are asked
how you handle the negative amount.
One of the obvious questions that a lawyer would ask you is
“how you can afford to have a negative cash flow each month and
maintain the level of expenses shown on your affidavit?” The simple
answer to that is “the financial affidavit was based on what I “should”
be spending each month to maintain a minimum standard of living. It
should be obvious to you that since I do not have that amount of
money to maintain it, I need to spend less to do so. I do this by not
buying as much food as I need; I do it by not buying as much gas as I
should; I do it by not buying the clothes that I need; I do it by deferring
needed home and vehicle repairs;” etc. You get the drift.
Author’s Note: Should the other side request documentation
from you, a good technique to remember is to overwhelm them
with copies of all the data you can scrape up e.g. receipts,
invoices, paid bills, etc. The operative saying in this situation
is: “more is better.”
The purpose here is to send them un-summarized items with
which they will have to sort out, compile and spend a lot of
time sifting through to total them. Keep them busy.
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Most banks have banking online. I would suggest that you
avail yourself of this feature (usually at no cost) so that you can print
out a statement showing the balance as of the date of the financial
affidavit. Obviously, you want the statement to show the lowest
possible balance for the hearing to substantiate your position of not
having much cash on hand or in savings.
Next, you will want to tear apart the ex-spouses financial
affidavit to show they have no “need” for support payments.
The Ex-spouse’s Financial Affidavit
Concurrently with your submittal of your financial affidavit to
the other side, the ex has to provide the same information in response
to your request for financial data and in accordance with the rules of
procedure. With a filing of an SPMA, the requirement that both side
provide current financial data is mandatory.
If the other side doesn't comply in a timely manner (within
approximately 45 days), you get to file a motion to compel and notice
of hearing with the court requesting that they be compelled to provide
you with that data.
After receiving the affidavit from your ex-spouse, take it apart,
line-by-line to see if there are any inconsistencies or falsifications.
Cross check everything on the affidavit against the supporting
documents and your knowledge of their spending habits. For every
item of consequence, verify the values used. The main objective is to
show that your ex’s expenses are inflated or their income and assets
are understated.
You can do most of the searching online. Some of the items to
look for:
•
Start with the assets. If they indicate a value of their house,
you can cross check this with the county property
appraiser's valuation of market value. There are always
public records to substantiate what they claim for real
estate, vacant land, etc.
•
Do a search of the public records at the Clerk of the Court
in your county. Sometimes your search will turn up other
- 49 -
properties they might own or interests in other real estate or
trusts. These are usually found in deeds or real estate
transactions that are recorded.
•
Search these same records for the names of parents or close
relatives with whom they might own property jointly.
•
Go to the Department of State to check their name so see if
they have a business license or are an officer of a
corporation.
•
Cross check their income tax returns against their affidavit
to see that they are in agreement. If not, ask them for an
explanation of the discrepancy (in court). This is good for
any income producing property they might have.
•
Check their bank records for any large unexplained
deposits or unreported accounts (like ones to protect against
overdrafts.) Compare their deposits against reported
income. Make sure they are in agreement.
•
Check their credit card records for items they may or may
not have on their affidavit. Such items as entertainment,
meals in restaurants or any other items that will provide a
way to challenge the entries on the affidavit.
•
If there are any large amounts of expenses for items like
"repairs," be sure they have invoices or receipts to
substantiate their declared amounts. These can be falsely
inflated figures. Cross-check their bank account statements
to see if the paid invoices correspond with the paid checks.
You get the idea. If you have a lawyer, I'd almost guarantee
that at $300/hr or more that they charge, they are not going to spend as
much time on a bit of detective work like you will. This is especially
true if you are financially strapped and defending yourself pro se.
Besides, you have an advantage of knowing your ex’s habits and have
a better idea of where any discrepancies might be.
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To try and prove that your ex has falsified or made material
misrepresentations on their financial affidavit is extremely well worth
your time, so don't neglect it. Everyone takes it for granted that what is
submitted is correct. Don't make the error of that assumption.
One of the first rules of litigation is to discredit the opposition
by showing they have unclean hands and catch them in material
misrepresentations of the facts. If you can do this early on, then
anything to which they testify later will be suspect.
When you find discrepancies anywhere, you can use this to
your advantage in preparing your offense at a court hearing. Also,
falsification of their affidavit is punishable by fines and incarceration.
So here's your chance to get back at them and turn the tables around at
the hearing.
Table of Contents
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Other Useful Strategies
W
hat are some of the things your ex-spouse can do to fight
back? What kind of defenses can you use against the
opposition? What will the judge be looking for in your
arguments?
One of the things you can expect is for your ex to file a
counter-claim for an increase in alimony. On what basis can they get
more money from you?
Here are some things the court will consider as conditions
favorable to granting an increase to them:
If they have had any important and unforeseen change in
circumstances which may have arisen since the entry of the final
judgment or last court order increasing alimony.
If they have had any healthcare expenses which were not
contemplated at the time of the last alimony award as contrasted
with only an increase in routine medical, dental, optical,
psychological, or counseling costs.
Has there been an unexpected deterioration in their health along
with a need increased financial assistance?
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Have they been required to encumber, sell, or transfer capital
assets in order to maintain the standard of living? Note: Your
defense to this would be to ask why they didn’t use any alternate
methods of financing to get money, such as finding employment or
borrowing money against their assets? Kaufman v. Kaufman, 541
So. 2d 743 (Fla. 3d D.C.A. 1989).
Are they claiming that they wish to maintain the lifestyle that was
enjoyed during the marriage with the claim that it cannot be
afforded at the present time? Note: Your defense to this would be
to ask why don’t they cut back on living expenses or find
employment. Quote from Hillier v. Iglesias that at your income
level, it is unreasonable to expect both parties to maintain the same
standard of living when you are attempting to maintain two
separate households. Also, there are other cases quoting that the ex
is supposed to become self-sufficient and not expect alimony
welfare for the rest of their lives.
When the equitable distribution has been shown to have been
inadequate and the ex shows an increased need for the maintenance
of the home, repair or replacement of major appliances or the like,
repair or replacement of their automobile or even forgo the use of
air conditioning or other essentials because it cannot be afforded, a
modification of alimony is justified, especially where you are a
high paid professional earning substantially more money than your
ex.
Your voluntary retirement prior to age 65 does not preclude your
ex from receiving increased alimony.
When your ex’s needs have substantially increased despite the fact
that they have attempted to supplement income and that their
standard of living is now well below that enjoyed during the
marriage. If they can show that only by the depletion of assets can
their needs be met, then a modification is warranted especially if
you can be shown to have achieved a better standard of living with
a corresponding increased income.
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Be aware that it is not sufficient for your ex to make a claim for an
increase in alimony because of an increase of the costs for medical
care, rent, or any other routine monthly expenses. See Shafer v.
Shafer, 777 So. 2d 1090 (Fla. 2d D.C.A. 2001); Andrews v.
Andrews, 409 So. 2d 1135 (Fla. 2d D.C.A. 1982).
On the other hand, some other points you could use in your
defense are in the following list. To get them introduced into court,
you can probably file something like a “motion to deny” or “motion in
objection to former spouse’s counter-claim request for increased
alimony.”
•
Showing that your ex’s expenses are not from a documented
spending pattern, but instead are speculation, guesswork, or a
"wishlist." Tarkow v. Tarkow, 805 So. 2d 854 (Fla. 2d D.C.A.
2001); Schwab v. Schwab, 864 So. 2d 82 (Fla. 1st D.C.A. 2003).
•
Showing the approximate interest yield or appreciation your ex
could have received if they would of invested the equitable
distributions of any marital assets as well as an imputation of their
income for self-support purposes.
•
Showing whether there been any dissipation in the awards of
equitable distribution by the ex, which has contributed to a postjudgment reduction of a claimed standard of living.
•
In the event that the ex comes back at you in a counter-claim for
increased alimony, in most cases, a showing of increased need on
their part is an essential element or condition to a determination for
increased alimony. You have to discount any of their claims of an
increased need.
•
Under applicable law, the court can make a new determination of
their employability in a modification action. Show they are that
they are healthy, able to work and has skills. Show what the job
market is in their skills and bring a newspaper with ads to show
vacancies and wages. Inquire about their efforts to get a job.
Consider getting a vocational expert to testify as to their potential
income capabilities.
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Don't attack their character as the judge won't like it…let the facts
speak for themselves and he will see it. Try to find out if the ex has
made any effort to become self-sufficient. This defense might not
work if she is a full-time mother and homemaker and needs to
continue in that capacity.
•
A highly influential argument would be in showing that your ex
has a lack of motivation in trying to find work. (See the case of
Hurtado v. Hurtado, 407 So. 2d 627 (Fla. 4th DCA 1981)).
•
If the ex is having difficulty in obtaining work, be sure to see F.S.
446.50 Displaced Homemakers Trust Fund in the appendix. This
program is available and your ex might be able to qualify for it.
•
An increase in your assets or net worth does not necessarily add to
or increase your income for the purpose of paying a higher amount
of alimony since these additions may be illiquid in form or be
burdened by federal income tax consequences when being sold,
traded, or transferred. Conversely, increased expenses relating to
remarriage, debt, or your business practices or ventures may also
offset your increased financial ability.
•
The standard to measure increased need requires a court to
consider the ex’s pre-existing needs and necessities of life as they
were established during the marriage, and not a showing of
increased need based on the alleged necessities of life as claimed
by them after the divorce. The ex has no vested right to share in
your “good fortune” or your “income after the divorce. See Szuri v.
Szuri, 759 So. 2d 709 (Fla. 3d D.C.A. 2000); Shafer v. Shafer, 777
So. 2d 1090 (Fla. 2d D.C.A. 2001).
•
The case cite of Hurtado (mentioned above) expressed the view
that "permanent periodic alimony" is not necessarily synonymous
with the word "forever," and that your health and employment
conditions could be a change of circumstances sufficient to relieve
the alimony recipient of being categorized as a "alimony drone" for
the remainder of their unmarried life.
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•
According to Ruhnau v. Ruhnau, 299 So. 2d 61 (Fla. 1st DCA
1974), circumstances can change the status of your ex’s
employability by your children attaining majority or the ex merely
being required to be at least partially responsible for their own
financial future. To hold otherwise, said the court, would be an
unjust result because a higher alimony award may be justified
when the children are younger, but may be diminished when they
attain majority and by an ever increasing job market and abundant
educational opportunities for the former spouse.”
•
It is not sufficient for your ex to show that the standard of living is
now below that enjoyed during the marriage and it is not enough to
support a request for an increase in alimony, especially where they
have made no attempt to correct the so-called deficits in the
standard of living by looking for ways supplement their income or
becoming employed.
•
Show that your ex has wasted an award of equitable distribution
which has contributed to the lowering of their standard of living.
Additionally, while their use of alimony to maintain an unusual or
unpleasant lifestyle will not support a downward reduction or
termination of alimony, neither will their extravagance be used to
subsidize it by an order increasing alimony.
•
If your ex has a “live-in friend” (or is cohabitating) and claims that
that person is just renting a room from them, then check to see if
the home has a homestead exemption. If the property is still being
granted the homestead exemption, it cannot be used as a
rental. Otherwise, that is fraud.
This is public information easily found at the County
Property Appraiser’s courthouse office or website. It is only
necessary to have the owner’s name or street address in order to
find out if that property is claiming the exemption. Also, check
their income tax returns to see if they are declaring the rental
income from it. This could possibly give you a couple of ways to
discredit your ex to the court. One, by showing tax evasion in not
reporting rental income and two, by fraud to the county in
declaring rental property as a homestead. (See Homestead Fraud in
the Appendix)
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•
If you are able to obtain a copy of your ex-spouse’s credit report, it
will show a wealth of information that can be used to cross-check
with their financial affidavit to see if they are reporting all their
credit cards, credit accounts, loans, payment history, etc.
The points being made here is that you don't always have to be
on the defensive. With these strategies and information, you can go on
the attack, which the other side won't expect. Practically no one does
this on a pro se basis and the opposition will be totally unprepared for
it.
If you suspect your ex of cohabitating and have a few extra
dollars to work with, you can always hire a private detective to dig up
information on your ex and their live-in partner to present the court if
it will help discredit your ex.
In your SPMA, you might want to consider a request to
terminate rather than just a reduction in alimony obligation. To do this,
you must prove either a permanent inability to pay the amount ordered
or an inability to pay any amount. At the same time, it would be a
good idea to assert and prove that your ex is adequately able to support
themselves through their own efforts or financial resources. One of the
main concerns of the court is that of the ex having to fall back on
public welfare. Show that this will not be a concern. In this situation,
you will find it practical to plead both for a reduction and a
termination.
Now that you have prepared your documents and gathered data
on your ex-spouse, you are now ready to start putting your case
together and plan your strategy for the upcoming trial. This will be
outlined in the next chapter.
Table of Contents
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Preparing For Trial
H
ow can you prepare for court? For the pro se, appearing
before a judge can be an intimidating event held in a room
where your financial future hangs in the balance. How well
you do will depend upon how you present yourself and your case.
There are two aspects of preparation to consider—mental and
factual. The factual aspect encompasses the facts of the case that you
will present to the judge. The more facts you have in your favor, the
better chance you have.
The degree of your preparation and method of presentation will
have a lot to do with how you impress the judge. Remember, the judge
is going to take the facts of the case and apply the law to them to
obtain a ruling. In this situation, more is better. You want to
overwhelm them with a preponderance of the evidence supported by
caselaw showing that you should prevail.
The main points upon which your presentation should be
focused are your “present ability to pay” and your ex-spouse’s
diminished “need” for alimony.
Remember, you have a “substantial change of circumstances”
that you have to prove to the judge. If the change happens to be a
“permanent” change of circumstances, things will definitely be in your
favor. Such a “permanent” change would be one of your reaching the
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Preparing For Trial
age of retirement, a decline in the industry in which you are employed,
a medical disability or something similar.
For the mental aspect, it would be wise to learn some relaxing
techniques you can use prior to the hearing like meditation, yoga-type
breathing, or anything else you know about calming yourself. Taking a
couple of tranquilizers works well too.
Very important is to bring some moral support along in the
form of friends or associates if possible. Not only is it good for your
mental attitude but also they will provide two benefits. First, they will
provide a relaxing atmosphere prior to a hearing in giving you
someone with whom to talk and; second, they will provide witnesses
and spectators for the opposition and judge to see. They can even help
by taking notes of the proceedings.
Apparently, it seems to upset the opposition on occasion to see
witnesses present because I’ve had an occasion where the opposing
lawyer questioned me as to the identities of the spectators. If this
happens to you, you could just answer with something like “concerned
citizens” then if the lawyer presses any further, you can object to the
judge saying that the trials are open to the public and it is not any of
the lawyer’s business as to the identities of the spectators.
Any time I can cause concern in the opposition, it makes me
happy because it throws them off balance. The judge and opposing
lawyers usually are more careful in what they say knowing there are
strangers observing what is going on.
Court Procedures
Courts have a definite procedure to follow in hearings and
trials. The easiest and best way to learn about what goes on and how
they operate is to get the book suggested at the beginning: “Represent
Yourself In Court.” This is a valuable resource that you should have
and study until you have grasped the contents.
Another way to do this is by attending other hearings or trials
in your local court presided upon with the same judge who is assigned
to your case. These hearing/trials are all open to the public (except
possibly ones that might involve children). This will be a most
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Preparing For Trial
valuable lesson for you in order for you to see how hearings and trials
are conducted without your being under pressure to perform.
You will find it very important to put in writing everything you
want to say in front of the judge into a script. Especially for the
opening and closing statement. Prepare your statement as if the judge
has never seen your filed documents. There is a good chance he hasn’t
done any more than scan them prior to the hearing. I think this is why
they have opening statements.
In your opening statement, your goal is brevity with a
statement of the facts that support your motion and in turn to get the
judge’s attention to your arguments. Tell the court “what” you are
going to prove either in support of your case or where the other side is
in error. Then “elaborate” on the points you are going to prove, and
finally give them a “summary” of what you have just said and
indicate that it will give them reason to rule in your favor.
Try to use a simple format, which is easy for the judge to
follow. Number the points you are going to make so the judge has
some idea of where you are in your statement.
After you have written your speech, practice delivering it aloud
until you are able to say it with ease and not stumbling too much.
During the hearing, you will probably be nervous to some extent and
familiarity with delivering the speech will make it all the more easier
for you.
In your statements, you will want to be sure to use quotes from
legal cites to emphasize and justify your reasons why your alimony
should be reduced. These case cites are representative of the higher
court’s interpretations of the “law” upon which the judges base their
rulings. The higher court rulings are considered precedents the lower
courts will have to use.
If the other side uses case cites, it will be rare that they will use
more than a couple. And, there is always a chance they will probably
be outdated ones at that.
In the appendix of this book and on the support website, you
will find important case cites and quotations you can incorporate into
your presentation. You will also want to go to check out Loislaw,
Westlaw or lexisONE to see if any new rulings will help support your
arguments.
If a judge asks you for the name of the cite so they can look it
up, you will respond back with something like the following: Hillier v.
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Preparing For Trial
Iglesias, 901 So.2d 947 (Fla.App. 4 Dist. 2005) which is read as:
Hillier versus Iglesias, 901 Southern 2nd page 947, (Florida 4th District
Court of Appeals, 2005)
It is also a good idea to have a copy of the relevant caselaw you
will be using so that you can pass a copy to the opposing side and one
to the judge. When offering anything to the judge, present it first to the
bailiff to have him hand it to the judge.
A good method of assembling your case and order of
presentation is to use a 3-ring “trial notebook” with tabbed dividers.
Place everything in there in the order that will follow the court’s
proceedings. Avoid loose papers in folders, other than caselaw
handouts you might have for the judge, as they have a way of getting
mixed up in the rush to find things. It would be wise to print out your
statements in double-spaced 14-point typeface to make it easier to read
while you are at the speaker’s podium.
Another thing you might want to bring is a digital tape recorder
to record the event. Things will be going by at a fairly rapid rate. There
will be a lot of material covered, and you will be so preoccupied with
your presentation and simultaneously trying to follow the proceedings
that you will be unaware of all that is happening. The digital recording
can be downloaded to your computer and used to refresh your memory
should you need refer back to the court happenings or to go to appeal.
Court Reporter
VERY IMPORTANT: For your protection, you will
“absolutely” need to have a court reporter at important hearings to
record accurately both sides of the proceedings and all the material
you will present. This can be used in the event you need to appeal any
ruling against you that might result from the hearing. You might think
this an unnecessary expense, but you will find it is well worth the cost
for the protection and benefits it will give you.
Don’t scrimp in this area and not use one. With a transcript,
you will be able to provide proof of what transpired during the trial
and possibly that the judge abused their discretion or didn’t follow the
law.
Not having a transcript will hurt your chances of appealing
your case to a higher court. Appeal cases stand a chance of being
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Preparing For Trial
dismissed, rejected or remanded back to the lower court if there is no
transcript to substantiate your claims. (Read the case of Esaw v. Esaw,
2D06-1163 (Fla. App. 2 Dist 2007) on the support website)
In addition, having a court reporter introduces an intimidation
factor that the other side doesn’t expect. It removes the element of
“your word against theirs” in later appeal proceedings if needed.
The court reporter will normally have two charges: 1) the cost
to attend and record the hearing if you place the order and; 2) the cost
per page of finished transcript, if you decide to order a copy of the
transcript. There is no obligation to order a transcript. Either side can
employ the reporter and either side can order transcripts from them.
Prior to doing this, you might want to call the opposition
lawyer’s secretary and ask if they will be ordering a court reporter. If
they do, which is very unlikely, then you won’t have to order one
yourself, but will be able to order a transcript in the event you need
one. You will save the attendance charges. Keep this in mind for any
of the hearings or trials you will have in the future.
What protection and benefits will you get from a court
reporter?
1. If you decide to appeal, you will have an accurate record of the
hearing and what was said. Otherwise, you have no proof of
what actually transpired.
2. If you do not have a transcript to support your allegations, there
is a chance that the court of appeals will dismiss your case.
3. If it is not in the transcript record, the appeals court can’t rule
on it.
4. Courts of appeal do not make decisions based on the “facts,”
they make rulings on the “law” relative to the “facts” and
whether or not the judge interpreted them correctly. A
transcript will indicate what facts were presented and what all
the parties said.
5. There is an intimidation factor for the judge and the opposition.
The opposition will not expect you to have one. It will throw
them off balance.
6. They know what they say will go on the record and anything
they say can be used against them.
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Preparing For Trial
Lastly, in the event trial court rulings might go against you,
consider adding a sentence in your documents “that you are preserving
the right to appeal this case to the appellate court.” This way your right
to appeal is in writing and in the record.
Now that you know how to prepare your documents and have
done so, you are ready for your day in court. If you have been diligent
and done your homework, you should now feel confident and ready to
face the judge.
Table of Contents
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Trial
W
hat goes on in a trial and how should you handle it? What
can you do to prepare yourself? What are the procedures
you will encounter?
Your mental attitude will have a lot to do with how you handle
things. You have to have confidence and find comfort in the fact that
you have armed yourself with the best tools for your case….your
caselaw, your facts, your evidence and your preparations.
Procedures In Court
The best reference for court procedures is the “Represent
Yourself In Court” book mentioned in the earlier chapter on
“Preparing To Do Your Own Legal Work.” Study it well to learn how
the court will operate.
At all times, you need to be respectful of the court. There might
be times when you might be inclined to use harsh words to emphasize
a point or against the opposition. Refrain from doing so. Remember,
the judge has the power to sanction you or put you away for a while,
so it doesn’t pay to tick them off.
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Trial
It is considered rude to interrupt an opponent. However, it is
permissible for you to “object” to any statements, etc. that are out of
line, false or violate procedures. Be sure to read up the chapter on
objections in the “Represent Yourself In Court” book as it give
excellent examples of which ones you can use and how to use each
one.
Don’t try to memorize them all, but just take a few of the more
important ones and recap them on a tabbed sheet you can add to your
“trial notebook” and use it for quick reference.
Normally, the courts give a certain degree of latitude to a pro
se in what they do in a court hearing. However, you need to be aware
of the procedures and try to follow them to the letter as close as
possible. Just like the rules of the road, the courts are governed by the
Fla. R. Civ. P. and the Fla. Fam. R. P. If you show respect to the court
and an attempt to follow the prescribed procedures, they will recognize
this and probably give you leeway in other areas.
At the start of the trial/hearing, after the judge makes his
comments, the party that initiated the proceedings will make an
opening statement to support their petition or motion. Essentially the
opening arguments of each party will consist of summarizing what is
in their motion.
In the SPMA or any motions to compel or for contempt that
you filed, you will have the honor of going first and presenting your
opening statement. This statement should be approximately 5 minutes
long.
At the beginning of your opening statement, be sure to ask the
judge to reserve a short period of time like 5 minutes for rebuttal of the
opposition’s argument.
It is very important to put in writing most everything you want
to say during the trial in a script. You will definitely want to have a
script of questions to ask your ex-spouse when you get a chance to put
them on the witness stand to testify.
When the other lawyer is making their opening statement and
the presentation of evidence that will follow, be sure to take notes.
You will need to know which items you need to rebut or address when
your time comes to speak again.
It is bad form to interrupt the opposition during their opening
statement. The time to do it is after their opening statement when they
are presenting evidence and making statements you know are
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Trial
inaccurate or when they are questioning someone on the witness stand.
You do this in the form of “objections.”
When you speak in the courtroom, direct your full attention on
the judge and make eye contact as often as possible. Be sure to use
emphasis on important points. Don’t use a monotone delivery. You
want to keep the judge awake and not let them bored. You can do this
by not belaboring minor points and by using your hardest hitting
evidence early on.
Forget anyone else is in the room. Don’t be afraid to show the
court that you have a bit of “passion” in your beliefs and in your
statements by emphasizing particular points being made.
When your turn comes to speak and present evidence, you goal
will be to show that the opposition has not provided any specific
financial evidence or caselaw precedent to support the ex-spouse’s
“need” for alimony or to justify maintaining the present level of
alimony payment amounts.
If the ex-spouse has avoided the responsibility of becoming
independent and self-sufficient, you need to hammer on this point and
to show how they have been negligent in doing so. If they have any
educational background or prior training in any field, this can be used
to show potential for rehabilitation.
You might want to show the court that the alimony claimant is
a money-hungry, lazy and unworthy person. You want to make the
court not the like the ex-spouse. But be careful in how you do this. It
could backfire.
Lastly, you want to show that your financial affidavit and
supporting documents provides proof that you have no “ability to
pay” the present level of alimony and that all of this constitutes a
substantial change of circumstances for you.
The judge will consider the parties age, health and length of the
marriage (permanent alimony is usually assessed for marriages of
over 10 years with an apparent grey area in the 10 to 15 year period.)
So you need to be able to counter this if applicable by showing they
have no present “need” of alimony in addition to your not having the
“ability to pay.”
If you have no money and no present ability to pay, there
should be no increased alimony awarded regardless of the ex’s needs.
Don’t forget that your ability to pay also includes your “needs” that are
required to be considered in order for you to survive.
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Trial
You might also want to argue that there is no evidence to show
that it is likely that there will ever be a future ability of you to pay. So,
try to get the court to terminate alimony altogether. The court’s basic
consideration to alimony is that they do not want a spouse to become
dependent on the government for welfare. That is why they saddle you
with making sure they don’t. You have to show that they can support
themselves and become self-sufficient.
If there was a substantial settlement or equitable distribution at
the dissolution, you might point this out to show that they have enough
assets and would not become a ward of the public. If they have wasted
away or squandered what they received from the settlement, be sure to
point that out also.
This is the time to discredit your ex. When you get to question
your ex on the witness stand, be prepared with all the falsifications and
discrepancies you managed to find in their financial affidavit. If you
found any, be sure to indicate in your opening statement that they
come to court with “unclean hands” and that you will bring this out in
testimony.
In questioning your ex, be mindful of how to word or phrase
your questions or admit evidence. There are definite ways to do this as
outlined in the “Represent Yourself In Court” book. The judge will
ride herd on you to comply with the rules.
In your closing statement, go over the points that you have
proven and restate them in summary to the judge and tell the judge
“the preponderance of the evidence supports my arguments that my
alimony payments can justifiably be reduced or terminated.”
You will find that no matter how much you prepare, the
opposition will invariably come up with something that you didn’t
expect. Always expect the unexpected and then you won’t be
surprised. Remember, they have years of training in this and a lot of
experience and experience in courtrooms to fall back on to use against
you. “Never” underestimate their abilities.
When this happens, be prepared with “objections” you can use
against the opposition. If you can’t handle what they threw at you, fall
back on your script or the facts of the case or, just ask the judge to
clarify whatever it is you don’t understand, in a polite manner. Buy
some time so you can regroup and try to handle the situation.
The recommended book indicated above has a good section on
the different objections that you can use for various situations that
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Trial
might arise at the trial. Again, raising objections is something that will
surprise the opposition, as they won’t be expecting it from you. There
are definite rules in how to do this, which are explained in the book.
Practice using these objections by repeating them out loud in private.
If you are ever unsure of what to say or how to answer the
court, you might want to just say something to the effect that “I am
unsure of how to answer that and rather than conflict with what I have
said in my documents, I will rely on them to present my arguments.”
After the other side has a chance to present their closing
statements, now you will have a chance to rebut anything they have
said with the time allotted for your rebuttal. Remember, you had asked
the judge to reserve a few minutes rebuttal of the opposing side’s
closing statement at the beginning of the court session. You get have
the last words to present to the judge. Be sure to chose them well.
Table of Contents
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Request For Jury Trial
A
re you entitled for a jury trial in a civil family law case?
When are you entitled to request one?
Under Fla. R. Civ. P. 1.430 you will see the following
rule:
Rule 1.430. Demand For Jury Trial; Waiver
(a) Right Preserved. The right of trial by jury as
declared by the Constitution or by statute shall be
preserved to the parties inviolate.
(b) Demand. Any party may demand a trial by jury of
any issue triable of right by a jury by serving upon the
other party a demand therefore in writing at any time
after commencement of the action and not later than 10
days after the service of the last pleading directed to
such issue. The demand may be indorsed upon a
pleading of the party.
(c) Specification of Issues. In the demand a party may
specify the issues that the party wishes so tried;
otherwise, the party is deemed to demand trial by jury
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Request For Jury Trial
for all issues so triable. If a party has demanded trial by
jury for only some of the issues, any other party may
serve a demand for trial by jury of any other or all of
the issues triable by jury 10 days after service of the
demand or such lesser time as the court may order.
(d) Waiver. A party who fails to serve a demand as
required by this rule waives trial by jury. If waived, a
jury trial may not be granted without the consent of the
parties, but the court may allow an amendment in the
proceedings to demand a trial by jury or order a trial by
jury on its own motion. A demand for trial by jury may
not be withdrawn without the consent of the parties.
This option is rarely if ever used because, most likely, few if
anyone know how to use it. Even I was unaware of its usefulness until
someone brought it to my attention after all my proceedings had
ceased.
It would seem that the courts prefer not to have jury trials as it
would greatly increase their workload and clog up the court system.
They like to have only judges make all the decisions in the cases in
order to speed things through.
Family law cases are tried in courts of equity. Jury trials are
allowed only for situations that arise in civil court that are nonequitable such as fraud and misrepresentations. The rule that has
evolved is that even where a complaint (or petition) lies solely in
equity, the filing of a compulsory counterclaim seeking remedies at
law for fraud or misrepresentation entitles the counterclaimant to a
jury trial of the legal issues, if one is asked for.
The material in this section will probably not be of much use to
you in a typical case, but it is good to know what tools are available in
the event you might be faced with this situation.
Now that you have seen what is involved, I would like to leave
you with a few parting thoughts in the next section.
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In Closing
W
hat you have just read should convince you that you are
now able to take control of your fate and that you will be
able to hold your own in court.
At the start, we are all hesitant to fight the system, as there
seems to be overwhelming odds against us. But once you get into the
battle, you will find that it was only your lack of knowledge that gave
you that hesitation.
It was the purpose of this guidebook to change those odds and
to mitigate your fears of the unknown. Unknowns, once they are
brought into the light of understanding can no longer be fearful to you.
The only fear you might have is that of the unknown and that
you are facing overwhelming odds in an abyss called the family law
system. Do not let this deter you but take courage from the fact that
when people like you undertake to fight back; you stand the chance of
reaping the rewards.
Simpler put, if you don’t challenge the opposition, you have a
100% chance of not succeeding and possibly serving the rest of your
life in involuntary servitude. (See appendix for definition) If you
choose to fight back, you’ve just increased your odds to 50%. That’s
good odds in anyone’s book considering the possible outcome stands
to be in your favor and saving you a lot of money.
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In Closing
And what have you got to loose in the process? Nothing but
some time. What have you got to gain? A possible reduction in
alimony: a better understanding of the legal system; and the processes
that, up to now, have been used against you. Even if you don’t win the
first time, there’s always a next time. Unless they dispose of your case
“with prejudice” you can file again when the opportunity presents
itself.
If you look at all this as an ongoing war, you will better
understand that you don’t have to win every battle to win the war. By
going pro se you are armed with a very potent weapon….that of not
having to incur hefty legal fees for everything you do. The only thing
you have lacked up to now has been the knowledge contained in this
book.
By keeping pressure on the opposition constantly, there is a
chance that you can win the war by attrition alone. Unless they have
deep pockets, their steep legal fees will be a good deterrent to them not
to continue the fight or to keep harassing you if they can’t get
reimbursement for their efforts.
The last step in the war is to file an appeal with the state district
court of appeals if it appears that the judge abused his discretion in
ruling on the “law” of the case. Before you take this step, you will
want to read one of our other publications “How To Appeal In State
District Court”
Fear not that you will make mistakes and remember these two
quotes by famous people:
"The probability that we may fail in the struggle ought
not to deter us from the support of a cause we believe to
be just." --Abraham Lincoln
"Many of life's failures are people who did not realize
how close they were to success when they gave up."
--Thomas A. Edison
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Appendix
Note: Please check our website at www.panama-publishing.com for
updated developments or new information to supplement this book.
Referenced Links:
•
•
•
•
•
•
•
Abolish Alimony.org
www.abolish-alimony.org
Alimony Victims Forum group
http://forum.alimonyvictims.com/
Alliance For Freedom From Alimony, Inc.
www.alimonyreform.org
Alliance For Freedom From Alimony, Inc. Yahoo Forum
group
http://groups.yahoo.com/group/cflap_org/
Citizens For Liberty And Privacy
www.cflap.org
Florida State Courts
www.flcourts.org/
Florida Courts Self-help, state forms
www.flcourts.org/gen_public/family/forms_rules/index.shtml
•
•
•
•
•
•
Panama Publishing, Inc.:
LexisOne – Free legal caselaw searches
www.lexisone.com/index.html
Loislaw
www.loislaw.com
State Disbursement Unit:
www.myfloridacounty.com/cse-pay/
Versus – low-cost legal caselaw searches
www.versuslaw.com/
Westlaw
www.westlaw.com
Table of Contents
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Appendix
Resources:
Florida Legal Services: Non-profit group offering information on
legal services for low and moderate income Floridians.
www.floridalawhelp.org/FL/index.cfm
Divorce Laws (Statutes) of all 50 states
www.law.cornell.edu/topics/Table_Divorce.htm
**********
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Appendix
Definition of Involuntary Servitude and Peonage from The ‘Lectric
Law Library Lexicon:
http://www.lectlaw.com/def/i071.htm:
“INVOLUNTARY SERVITUDE & PEONAGE - a condition of
compulsory service or labor performed by one person, against his will,
for the benefit of another person due to force, threats, intimidation or
other similar means of coercion and compulsion directed against him.
In considering whether service or labor was performed by someone
against his will or involuntarily, it makes no difference that the person
may have initially agreed, voluntarily, to render the service or perform
the work. If a person willingly begins work but later desires to
withdraw and is then forced to remain and perform work against his
will, his service becomes involuntary. Also, whether a person is paid a
salary or a wage is not determinative of the question as to whether that
person has been held in involuntary servitude. In other words, if a
person is forced to labor against his will, his service is involuntary
even though he is paid for his work.
However, it is necessary to prove that the person knowingly and
willfully took action, by way of force, threats, intimidation or other
form of coercion, causing the victim to reasonably believe that he had
no way to avoid continued service, that he was confronted by the
existence of a superior and overpowering authority, constantly
threatening to the extent that his will was completely subjugated.
Title 18, U.S.C., Sec. 1584, makes it a Federal crime or offense for
anyone to willfully hold another person in involuntary servitude.”
[Doesn’t having to pay lifetime alimony fit the above definition?]
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Appendix
Governing Statutes
Below is an extracted portion of the statute that applies to modification
of alimony.
Florida Statute 61.14 Enforcement and modification of support,
maintenance, or alimony agreements or orders.-(1)(a) When the parties enter into an agreement for payments for, or
instead of, support, maintenance, or alimony, whether in connection
with a proceeding for dissolution or separate maintenance or with any
voluntary property settlement, or when a party is required by court
order to make any payments, and the circumstances or the financial
ability of either party changes or the child who is a beneficiary of an
agreement or court order as described herein reaches majority after the
execution of the agreement or the rendition of the order, either party
may apply to the circuit court of the circuit in which the parties, or
either of them, resided at the date of the execution of the agreement or
reside at the date of the application, or in which the agreement was
executed or in which the order was rendered, for an order decreasing
or increasing the amount of support, maintenance, or alimony, and the
court has jurisdiction to make orders as equity requires, with due
regard to the changed circumstances or the financial ability of the
parties or the child, decreasing, increasing, or confirming the amount
of separate support, maintenance, or alimony provided for in the
agreement or order. A finding that medical insurance is reasonably
available or the child support guidelines in s. 61.30 may constitute
changed circumstances. Except as otherwise provided in s.
61.30(11)(c), the court may modify an order of support, maintenance,
or alimony by increasing or decreasing the support, maintenance, or
alimony retroactively to the date of the filing of the action or
supplemental action for modification as equity requires, giving due
regard to the changed circumstances or the financial ability of the
parties or the child.
(b)1. The court may reduce or terminate an award of alimony upon
specific written findings by the court that since the granting of a
divorce and the award of alimony a supportive relationship has existed
between the obligee and a person with whom the obligee resides. On
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the issue of whether alimony should be reduced or terminated under
this paragraph, the burden is on the obligor to prove by a
preponderance of the evidence that a supportive relationship exists.
2. In determining whether an existing award of alimony should be
reduced or terminated because of an alleged supportive relationship
between an obligee and a person who is not related by consanguinity
or affinity and with whom the obligee resides, the court shall elicit the
nature and extent of the relationship in question. The court shall give
consideration, without limitation, to circumstances, including, but not
limited to, the following, in determining the relationship of an obligee
to another person:
a. The extent to which the obligee and the other person have held
themselves out as a married couple by engaging in conduct such as
using the same last name, using a common mailing address, referring
to each other in terms such as "my husband" or "my wife," or
otherwise conducting themselves in a manner that evidences a
permanent supportive relationship.
b. The period of time that the obligee has resided with the other
person in a permanent place of abode.
c. The extent to which the obligee and the other person have pooled
their assets or income or otherwise exhibited financial
interdependence.
d. The extent to which the obligee or the other person has supported
the other, in whole or in part.
e. The extent to which the obligee or the other person has performed
valuable services for the other.
f. The extent to which the obligee or the other person has performed
valuable services for the other's company or employer.
g. Whether the obligee and the other person have worked together to
create or enhance anything of value.
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h. Whether the obligee and the other person have jointly contributed
to the purchase of any real or personal property.
i. Evidence in support of a claim that the obligee and the other person
have an express agreement regarding property sharing or support.
j. Evidence in support of a claim that the obligee and the other person
have an implied agreement regarding property sharing or support.
k. Whether the obligee and the other person have provided support to
the children of one another, regardless of any legal duty to do so.
3. This paragraph does not abrogate the requirement that every
marriage in this state be solemnized under a license, does not
recognize a common law marriage as valid, and does not recognize a
de facto marriage. This paragraph recognizes only that relationships do
exist that provide economic support equivalent to a marriage and that
alimony terminable on remarriage may be reduced or terminated upon
the establishment of equivalent equitable circumstances as described in
this paragraph. The existence of a conjugal relationship, though it may
be relevant to the nature and extent of the relationship, is not necessary
for the application of the provisions of this paragraph.
(c) For each support order reviewed by the department as required by
s. 409.2564(11), if the amount of the child support award under the
order differs by at least 10 percent but not less than $25 from the
amount that would be awarded under s. 61.30, the department shall
seek to have the order modified and any modification shall be made
without a requirement for proof or showing of a change in
circumstances.
(d) The department shall have authority to adopt rules to implement
this section.
(2) When an order or agreement is modified pursuant to subsection
(1), the party having an obligation to pay shall pay only the amount of
support, maintenance, or alimony directed in the new order, and the
agreement or earlier order is modified accordingly. No person may
commence an action for modification of a support, maintenance, or
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Appendix
alimony agreement or order except as herein provided. No court has
jurisdiction to entertain any action to enforce the recovery of separate
support, maintenance, or alimony other than as herein provided.
(3) This section is declaratory of existing public policy and of the
laws of this state.
(4) If a party applies for a reduction of alimony or child support and
the circumstances justify the reduction, the court may make the
reduction of alimony or child support regardless of whether or not the
party applying for it has fully paid the accrued obligations to the other
party at the time of the application or at the time of the order of
modification.
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Appendix
F.S. 446.50 Displaced homemakers
F.S. 446.50 Displaced homemakers; multiservice programs; report
to the Legislature; Displaced Homemaker Trust Fund created.
(1) INTENT.--It is the intent of the Legislature to require the Agency
for Workforce Innovation to enter into contracts with, and make grants
to, public and nonprofit private entities for purposes of establishing
multipurpose service programs to provide necessary training,
counseling, and services for displaced homemakers so that they may
enjoy the independence and economic security vital to a productive
life.
(2) DEFINITIONS.--For the purposes of this section:
(a) "Displaced homemaker" means an individual who:
1. Is 35 years of age or older;
2. Has worked in the home, providing unpaid household services for
family members;
3. Is not adequately employed, as defined by rule of the agency;
4. Has had, or would have, difficulty in securing adequate
employment; and
5. Has been dependent on the income of another family member but is
no longer supported by such income, or has been dependent on federal
assistance.
(b) "Agency" means the Agency for Workforce Innovation.
(3) AGENCY POWERS AND DUTIES.-(a) The agency, under plans established by Workforce Florida, Inc.,
shall establish, or contract for the establishment of, programs for
displaced homemakers which shall include:
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1. Job counseling, by professionals and peers, specifically designed
for a person entering the job market after a number of years as a
homemaker.
2. Job training and placement services, including:
a. Training programs for available jobs in the public and private
sectors, taking into account the skills and job experiences of a
homemaker and developed by working with public and private
employers.
b. Assistance in locating available employment for displaced
homemakers, some of whom could be employed in existing job
training and placement programs.
c. Utilization of the services of the state employment service in
locating employment opportunities.
3. Financial management services providing information and
assistance with respect to insurance, including, but not limited to, life,
health, home, and automobile insurance, and taxes, estate and probate
problems, mortgages, loans, and other related financial matters.
4. Educational services, including high school equivalency degree and
such other courses as the agency determines would be of interest and
benefit to displaced homemakers.
5. Outreach and information services with respect to federal and state
employment, education, health, and unemployment assistance
programs which the agency determines would be of interest and
benefit to displaced homemakers.
(b)1. The agency shall enter into contracts with, and make grants to,
public and nonprofit private entities for purposes of establishing
multipurpose service programs for displaced homemakers under this
section. Such grants and contracts shall be awarded pursuant to chapter
287 and based on criteria established in the state plan developed
pursuant to this section. The agency shall designate catchment areas
which together shall comprise the entire state, and, to the extent
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Appendix
possible from revenues in the Displaced Homemaker Trust Fund, the
agency shall contract with, and make grants to, entities which will
serve entire catchment areas so that displaced homemaker service
programs are available statewide. These catchment areas shall be
coterminous with the state's workforce development regions. The
agency may give priority to existing displaced homemaker programs
when evaluating bid responses to the agency's request for proposals.
2. In order to receive funds under this section, and unless specifically
prohibited by law from doing so, an entity that provides displaced
homemaker service programs must receive at least 25 percent of its
funding from one or more local, municipal, or county sources or
nonprofit private sources. In-kind contributions may be evaluated by
the agency and counted as part of the required local funding.
3. The agency shall require an entity that receives funds under this
section to maintain appropriate data to be compiled in an annual report
to the agency. Such data shall include, but shall not be limited to, the
number of clients served, the units of services provided, designated
client-specific information including intake and outcome information
specific to each client, costs associated with specific services and
program administration, total program revenues by source and other
appropriate financial data, and client followup information at specified
intervals after the placement of a displaced homemaker in a job.
(c) The agency shall consult and cooperate with the Commissioner of
Education, the United States Commissioner of the Social Security
Administration, and such other persons in the executive branch of the
state government as the agency considers appropriate to facilitate the
coordination of multipurpose service programs established under this
section with existing programs of a similar nature.
(d) Supervisory, technical, and administrative positions relating to
programs established under this section shall, to the maximum extent
practicable, be filled by displaced homemakers.
(e) The agency shall adopt rules establishing minimum standards
necessary for entities that provide displaced homemaker service
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Appendix
programs to receive funds from the agency and any other rules
necessary to administer this section.
(4) STATE PLAN.-(a) The Agency for Workforce Innovation shall develop a 3-year state
plan for the displaced homemaker program which shall be updated
annually. The plan must address, at a minimum, the need for programs
specifically designed to serve displaced homemakers, any necessary
service components for such programs in addition to those enumerated
in this section, goals of the displaced homemaker program with an
analysis of the extent to which those goals are being met, and
recommendations for ways to address any unmet program goals. Any
request for funds for program expansion must be based on the state
plan.
(b) Each annual update must address any changes in the components
of the 3-year state plan and a report which must include, but need not
be limited to, the following:
1. The scope of the incidence of displaced homemakers;
2. A compilation and report, by program, of data submitted to the
agency pursuant to subparagraph 3. by funded displaced homemaker
service programs;
3. An identification and description of the programs in the state that
receive funding from the agency, including funding information; and
4. An assessment of the effectiveness of each displaced homemaker
service program based on outcome criteria established by rule of the
agency.
(c) The 3-year state plan must be submitted to the President of the
Senate, the Speaker of the House of Representatives, and the Governor
on or before January 1, 2001, and annual updates of the plan must be
submitted by January 1 of each subsequent year.
(5) DISPLACED HOMEMAKER TRUST FUND.-- 83 -
Appendix
(a) There is established within the State Treasury a Displaced
Homemaker Trust Fund to be used by the agency for its administration
of the displaced homemaker program and to fund displaced
homemaker service programs according to criteria established under
this section.
(b) The trust fund shall receive funds generated from an additional fee
on marriage license applications and dissolution of marriage filings as
specified in ss. 741.01(3) and 28.101, respectively, and may receive
funds from any other public or private source.
(c) Funds that are not expended by the agency at the end of the budget
cycle or through a supplemental budget approved by the agency shall
revert to the trust fund.
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Appendix
Homestead Fraud
Per St. Johns County, Florida, Property Appraiser’s Office: “Once it
becomes a commercial venture, homestead is void.” Renting one or
more rooms would be a fraud violation.
What is Homestead Fraud?
Homestead fraud occurs when a person (or persons) who has filed for
and been granted homestead exemption is not actually a permanent
resident of St. Johns County; is not in good faith residing on the
property on which he or she filed; or is claiming a residence benefit
somewhere else at the same time as claiming homestead exemption
here.
Florida Statute 196.131(2) provides that "any person who knowingly
and willfully gives false information for the purpose of claiming
homestead exemption is guilty of a misdemeanor of the first degree,
punishable by a term of imprisonment not exceeding 1 year or a fine
not exceeding $5,000 or both."
Florida Statute 196.161 (1) (b) further states that “upon determination
by the property appraiser that for any year or years within the prior 10
years a person who was not entitled to a homestead exemption was
granted a homestead exemption from ad valorem taxes, it shall be the
duty of the property appraiser making such determination to serve
upon the owner a notice of intent to record in the public records of the
county a notice of tax lien against any property owned by that person
in the county, and such property shall be identified in the notice of tax
lien. Such property which is situated in this state shall be subject to the
taxes exempted thereby, plus a penalty of 50 percent of the unpaid
taxes for each year and 15 percent interest per annum.”
The penalties may appear stiff but it’s important to remember that
anyone who claims an exemption to which he or she is not entitled
forces the rest of St. Johns County’s taxpayers to make up the
difference in taxes. Particularly since the inception of Amendment 10
and its homestead exemption-linked assessment cap, those claiming
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Appendix
homestead fraud have the potential to significantly steal from our law
enforcement, our schools and our quality of life as citizens of this
county. As a result, the St. Johns County Property Appraiser
investigates homestead fraud very aggressively.
If you know of anyone who is committing homestead fraud, you can
notify the St Johns County Property Appraiser's Office
CONFIDENTIALLY by filling out the following form that will be
submitted to our office for review. Each report will be investigated by
this office.
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Appendix
Applicable Rules of Procedure
Note: The rules below are just a partial compilation of the
important ones that affect your case. Be sure to download the full rules
and read them in further detail to make sure you don’t overlook
anything.
Fla. R. Civ. P. Rule 1.280 GENERAL PROVISIONS
GOVERNING DISCOVERY:
(1) In General. Parties may obtain discovery regarding 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. It is
not ground for objection that the information sought will be
inadmissible at the trial if the information sought appears reasonably
calculated to lead to the discovery of admissible evidence.
**********
Fla. Fam. L. R. P. RULE 12.285. MANDATORY DISCLOSURE:
(a) Application.
(1) Scope. This rule shall apply to all proceedings within the scope of
these rules except proceedings involving adoption, simplified
dissolution, enforcement, contempt, injunctions for domestic, repeat,
dating, or sexual violence, and uncontested dissolutions when the
respondent is served by publication and does not file an answer.
Additionally, no financial affidavit or other documents shall be
required under this rule from a party seeking attorneys’ fees, suit
money, or costs, if the basis for the request is solely under section
57.105, Florida Statutes, or any successor statute. Except for the
provisions as to financial affidavits and child support guidelines
worksheets, any portion of this rule may be modified by order of the
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court or agreement of the parties.
(2) Original and Duplicate Copies. Unless otherwise agreed by the
parties or ordered by the court, copies of documents required under
this rule may be produced in lieu of originals. Originals, when
available, shall be produced for inspection upon request. Parties shall
not be required to serve duplicates of documents previously served.
(b) Time for Production of Documents.
(1) Temporary Financial Hearings. Any document required under
this rule in any temporary financial relief proceeding shall be served
on the other party for inspection and copying as follows:
(A) The party seeking relief shall serve the required documents on the
other party with the notice of temporary financial hearing, unless the
documents have been served under subdivision (b)(2) of this rule.
(B) The responding party shall serve the required documents on the
party seeking relief on or before 5:00 p.m., 2 business days before the
day of the temporary financial hearing if served by delivery or 7 days
before the day of the temporary financial hearing if served by mail,
unless the documents have been received previously by the party
seeking relief under subdivision (b)(2) of this rule. A responding party
shall be given no less than 12 days to serve the documents required
under this rule, unless otherwise ordered by the court. If the 45-day
period for exchange of documents provided for in subdivision (b)(2) of
this rule will occur before the expiration of the 12 days, the provisions
of subdivision (b)(2) control.
(2) Initial and Supplemental Proceedings. Any document required
under this rule for any initial or supplemental proceeding shall be
served on the other party for inspection and copying within 45 days of
service of the initial pleading on the respondent.
(c) Disclosure Requirements for Temporary Financial Relief. In
any proceeding for temporary financial relief heard within 45 days of
the service of the initial pleading or within any extension of the time
for complying with mandatory disclosure granted by the court or
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agreed to by the parties, the following documents shall be served on
the other party:
(1) A financial affidavit in substantial conformity with Florida Family
Law Rules of Procedure Form 12.902(b) if the party’s gross annual
income is less than $50,000, or Florida Family Law Rules of
Procedure Form 12.902(c) if the party’s gross annual income is equal
to or more than $50,000. This requirement cannot be waived by the
parties. The affidavit must also be filed with the court.
(2) All federal and state income tax returns, gift tax returns, and
intangible personal property tax returns filed by the party or on the
party’s behalf for the past year. A party may file a transcript of the tax
return as provided by Internal Revenue Service Form 4506-T in lieu of
his or her individual federal income tax return for purposes of a
temporary hearing.
(3) IRS forms W-2, 1099, and K-1 for the past year, if the income tax
return for that year has not been prepared.
(4) Pay stubs or other evidence of earned income for the 3 months
prior to service of the financial affidavit.
(d) Parties’ Disclosure Requirements for Initial or Supplemental
Proceedings. A party shall serve the following documents in any
proceeding for an initial or supplemental request for permanent
financial relief, including, but not limited to, a request for child
support, alimony, equitable distribution of assets or debts, or attorneys’
fees, suit money, or costs:
(1) A financial affidavit in substantial conformity with Florida Family
Law Rules of Procedure Form 12.902(b) if the party’s gross annual
income is less than $50,000, or Florida Family Law Rules of
Procedure Form 12.902(c) if the party’s gross annual income is equal
to or more than $50,000, which requirement cannot be waived by the
parties. The financial affidavits must also be filed with the court. A
party may request, by using the Standard Family Law
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Interrogatories, or the court on its own motion may order, a party
whose gross annual income is less than $50,000 to complete Florida
Family Law Rules of Procedure Form 12.902(c).
(2) All federal and state income tax returns, gift tax returns, and
intangible personal property tax returns filed by the party or on the
party’s behalf for the past 3 years.
(3) IRS forms W-2, 1099, and K-1 for the past year, if the income tax
return for that year has not been prepared.
(4) Pay stubs or other evidence of earned income for the 3 months
prior to service of the financial affidavit.
(5) A statement by the producing party identifying the amount and
source of all income received from any source during the 3 months
preceding the service of the financial affidavit required by this rule if
not reflected on the pay stubs produced.
(6) All loan applications and financial statements prepared or used
within the 12 months preceding service of that party’s financial
affidavit required by this rule, whether for the purpose of obtaining or
attempting to obtain credit or for any other purpose.
(7) All deeds within the last 3 years, all promissory notes within the
last 12 months, and all present leases, in which the party owns or
owned an interest, whether held in the party’s name individually, in
the party’s name jointly with any other person or entity, in the party’s
name as trustee or guardian for any other person, or in someone else’s
name on the party’s behalf.
(8) All periodic statements from the last 3 months for all checking
accounts, and from the last 12 months for all other accounts (for
example, savings accounts, money market funds, certificates of
deposit, etc.), regardless of whether or not the account has been closed,
including those held in the party’s name individually, in the party’s
name jointly with any other person or entity, in the party’s name as
trustee or guardian for any other person, or in someone else’s name on
the party’s behalf.
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Appendix
(9) All brokerage account statements in which either party to this
action held within the last 12 months or holds an interest including
those held in the party’s name individually, in the party’s name jointly
with any person or entity, in the party’s name as trustee or guardian for
any other person, or in someone else’s name on the party’s behalf.
(10) The most recent statement for any profit sharing, retirement,
deferred compensation, or pension plan (for example, IRA, 401(k),
403(b), SEP, KEOGH, or other similar account) in which the party is a
participant or alternate payee and the summary plan description for
any retirement, profit sharing, or pension plan in which the party is a
participant or an alternate payee. (The summary plan description must
be furnished to the party on request by the plan administrator as
required by 29 U.S.C. § 1024(b)(4).)
(11) The declarations page, the last periodic statement, and the
certificate for all life insurance policies insuring the party’s life or the
life of the party’s spouse, whether group insurance or otherwise, and
all current health and dental insurance cards covering either of the
parties and/or their dependent children.
(12) Corporate, partnership, and trust tax returns for the last 3 tax years
if the party has an ownership or interest in a corporation, partnership,
or trust greater than or equal to 30%.
(13) All promissory notes for the last 12 months, all credit card and
charge account statements and other records showing the party’s
indebtedness as of the date of the filing of this action and for the last 3
months, and all present lease agreements, whether owed in the party’s
name individually, in the party’s name jointly with any other person or
entity, in the party’s name as trustee or guardian for any other person,
or in someone else’s name on the party’s behalf.
(14) All written premarital or marital agreements entered into at any
time between the parties to this marriage, whether before or during the
marriage. Additionally, in any modification proceeding, each party
shall serve on the opposing party all written agreements entered into
between them at any time since the order to be modified was entered.
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(15) All documents and tangible evidence supporting the producing
party’s claim of special equity or nonmarital status of an asset or debt
for the time period from the date of acquisition of the asset or debt to
the date of production or from the date of marriage, if based on
premarital acquisition.
(16) Any court orders directing a party to pay or receive spousal or
child support.
(e) Duty to Supplement Disclosure; Amended Financial Affidavit.
(1) Parties have a continuing duty to supplement documents described
in this rule, including financial affidavits, whenever a material change
in their financial status occurs.
(2) If an amended financial affidavit or an amendment to a financial
affidavit is filed, the amending party shall also serve any subsequently
discovered or acquired documents supporting the amendments to the
financial affidavit.
(f) Sanctions. Any document to be produced under this rule that is
served on the opposing party fewer than 24 hours before a nonfinal
hearing or in violation of the court’s pretrial order shall not be
admissible in evidence at that hearing unless the court finds good
cause for the delay. In addition, the court may impose other sanctions
authorized by rule 12.380 as may be equitable under the
circumstances. The court may also impose sanctions upon the
offending lawyer in lieu of imposing sanctions on a party.
(g) Extensions of Time for Complying with Mandatory Disclosure.
By agreement of the parties, the time for complying with mandatory
disclosure may be extended. Either party may also file, at least 5 days
before the due date, a motion to enlarge the time for complying with
mandatory disclosure. The court shall grant the request for good cause
shown.
(h) Objections to Mandatory Automatic Disclosure. Objections to
the mandatory automatic disclosure required by this rule shall be
served in writing at least 5 days prior to the due date for the disclosure
or the objections shall be deemed waived. The filing of a timely
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Appendix
objection, with a notice of hearing on the objection, automatically
stays mandatory disclosure for those matters within the scope of the
objection. For good cause shown, the court may extend the time for the
filing of an objection or permit the filing of an otherwise untimely
objection. The court shall impose sanctions for the filing of meritless
or frivolous objections.
(i) Certificate of Compliance. All parties subject to automatic
mandatory disclosure shall file with the court a certificate of
compliance, Florida Family Law Rules of Procedure Form 12.932,
identifying with particularity the documents which have been
delivered and certifying the date of service of the financial affidavit
and documents by that party. The party shall swear or affirm under
oath that the disclosure is complete, accurate, and in compliance with
this rule, unless the party indicates otherwise, with specificity, in the
certificate of compliance. Except for the financial affidavit and child
support guidelines worksheet, no documents produced under this rule
shall be filed in the court file without a court order.
**********
RULE 1.340. INTERROGATORIES TO PARTIES
(a) Procedure for Use. Without leave of court, any party may serve
upon any other party written interrogatories to be answered (1) by the
party to whom the interrogatories are directed, or (2) if that party is a
public or private corporation or partnership or association or
governmental agency, by any officer or agent, who shall furnish the
information available to that party. Interrogatories may be served on
the plaintiff after commencement of the action and on any other party
with or after service of the process and initial pleading upon that party.
The interrogatories shall not exceed 30, including all subparts, unless
the court permits a larger number on motion and notice and for
good cause. If the supreme court has approved a form of
interrogatories for the type of action, the initial interrogatories shall be
in the form approved by the court. Other interrogatories may be added
to the approved forms without leave of court, so long as the total of
approved and additional interrogatories does not exceed 30. Each
interrogatory shall be answered separately and fully in writing under
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oath unless it is objected to, in which event the grounds for objection
shall be stated and signed by the attorney making it. The party to
whom the interrogatories are directed shall serve the answers and any
objections within 30 days after the service of the interrogatories,
except that a defendant may serve answers or objections within 45
days after service of the process and initial pleading upon that
defendant. The court may allow a shorter or longer time. The party
submitting the interrogatories may move for an order under rule
1.380(a) on any objection to or other failure to answer an
interrogatory.
(b) Scope; Use at Trial. Interrogatories may relate to any matters that
can be inquired into under rule 1.280(b), and the answers may be used
to the extent permitted by the rules of evidence except as otherwise
provided in this subdivision. An interrogatory otherwise proper is not
objectionable merely because an answer to the interrogatory involves
an opinion or contention that relates to fact or calls for a conclusion or
asks for information not within the personal knowledge of the party. A
party shall respond to such an interrogatory by giving the information
the party has and the source on which the information is based. Such a
qualified answer may not be used as direct evidence for or
impeachment against the party giving the answer unless the court finds
it otherwise admissible under the rules of evidence. If a party
introduces an answer to an interrogatory, any other party may require
that party to introduce any other interrogatory and answer that in
fairness ought to be considered with it.
*********
RULE 1.380. FAILURE TO MAKE DISCOVERY; SANCTIONS
(a) Motion for Order Compelling Discovery. Upon reasonable
notice to other parties and all persons affected, a party may apply for
an order compelling discovery as follows:
(1) Appropriate Court. An application for an order to a party may be
made to the court in which the action is pending or in accordance with
rule 1.310(d). An application for an order to a deponent who is not a
party shall be made to the circuit court where the deposition is being
taken.
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Appendix
(2) Motion. If a deponent fails to answer a question propounded or
submitted under rule 1.310 or 1.320, or a corporation or other entity
fails to make a designation under rule 1.310(b)(6) or 1.320(a), or a
party fails to answer an interrogatory submitted under rule 1.340, or if
a party in response to a request for inspection submitted under rule
1.350 fails to respond that inspection will be permitted as requested or
fails to permit inspection as requested, or if a party in response to a
request for examination of a person submitted under rule 1.360(a)
objects to the examination, fails to respond that the examination will
be permitted as requested, or fails to submit to or to produce a person
in that party’s custody or legal control for examination, the
discovering party may move for an order compelling an answer, or a
designation or an order compelling inspection, or an order compelling
an examination in accordance with the request. The motion must
include a certification that the movant, in good faith, has conferred or
attempted to confer with the person or party failing to make the
discovery in an effort to secure the information or material without
court action. When taking a deposition on oral examination, the
proponent of the question may complete or adjourn the examination
before applying for an order. If the court denies the motion in whole or
in part, it may make such protective order as it would have been
empowered to make on a motion made pursuant to rule 1.280(c).
(3) Evasive or Incomplete Answer. For purposes of this subdivision
an evasive or incomplete answer shall be treated as a failure to answer.
(4) Award of Expenses of Motion. If the motion is granted and after
opportunity for hearing, the court shall require the party or deponent
whose conduct necessitated the motion or the party or counsel advising
the conduct to pay to the moving party the reasonable expenses
incurred in obtaining the order that may include attorneys’ fees, unless
the court finds that the movant failed to certify in the motion that a
good faith effort was made to obtain the discovery without court
action, that the opposition to the motion was justified, or that other
circumstances make an award of expenses unjust. If the motion is
denied and after opportunity for hearing, the court shall require the
moving party to pay to the party or deponent who opposed the motion
the reasonable expenses incurred in opposing the motion that may
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Appendix
include attorneys’ fees, unless the court finds that the making of the
motion was substantially justified or that other circumstances make an
award of expenses unjust. If the motion is granted in part and denied
in part, the court may apportion the reasonable expenses incurred as a
result of making the motion among the parties and persons.
Table of Contents
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Appendix
Relevant Caselaw
Here are some excerpts from caselaw that can be used in your
oral argument in front of the court or even in your SPMA and other
documents. It will be good for you to understand the concepts put forth
in these decisions and to apply them in your presentation to justify
your arguments.
These cases can be found in their entirety on the www.panamapublishing.com website.
Acker v. Acker, 904 So.2d 384 (Fla. 2005)
In Diffenderfer, the Court recognized the difference and the
use of asset distribution as property rather than the designation
of an asset as a source for continuing payments as a method "by which
the marriage could be truly ended rather than prolonged through
financial dependence ad infinitum." Diffenderfer, 491 So.2d at 266
(quoting Diffenderfer v. Diffenderfer, 456 So.2d 1214, 1219 (Fla. 1st
DCA 1984)). It also recognized the use of assigning a pension plan as
an asset in a "scheme of property distribution" rather than extending
the connection of the parties by considering a stream of payments as
income to connect the parties forever. Id. at 267 (emphasis supplied).
The Diffenderfer court recognized that alternatively a pension asset
may be considered as a source of periodic alimony; the court
immediately noted, however, that
[o]bviously, . . . injustice would result if the
trial court were to consider the same asset in
calculating both property distribution and support
obligations.
Id. If the pension asset had not been distributed as property
and considered here only as a source of proceeds, and had the
wife not received additional or enhanced property as the
corresponding property "offset," I would agree with the majority.
I respectfully dissent and agree with the well-reasoned view
expressed by Judge Gersten below. The majority today has,
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Appendix
however, created a principle of law in domestic litigation that
an asset distributed as property is subject to redistribution
post-judgment upon a "need" and "ability to pay" analysis
notwithstanding its character, valuation and distribution as
property in the initial distribution, a principle previously
contrary to a well-developed body of Florida law. The asset here was
valued, characterized and distributed as property in the original
proceeding rendering it separate property which is now subject to
redistribution.
**********
Buxton v. Buxton, 2D06-5358 (Fla.App. 2 Dist. 9-5-2007)
Under section 61.14(1)(b)(2), financial support is but one factor to be
considered in determining whether a
"supportive relationship" exists. In addition to the financial issues, the
length and nature of the live-in relationship are significant factors for
the trial court to consider. We do not believe that the legislature
intended for every roommate or brief live-in relationship to trigger a
reduction in or termination of alimony. Instead, only those
relationships that are equitably equivalent to a remarriage warrant a
reduction or termination of alimony. While consideration of financial
support is an important part of that analysis, that factor alone does not
define whether a "supportive relationship" exists.
**********
Carls v. Carls, 890 So.2d 1135 (Fla.App. 2 Dist. 2005)
Modification of Alimony:
The Second District Court of Appeal held that alimony may be
increased or decreased in an amount that maintains the approximate
percentage difference between the parties’ incomes that existed at the
time of final judgment. In the case before the court, the obligeespouse’s income at the time of the modification proceedings remained
less than the obligor’s
income, but had increased substantially since the dissolution. Because
there was no indication the trial court intended to equalize the parties’
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Appendix
incomes in the original judgment, a general master’s determination
that alimony should be reduced was proper in that it maintained the
obligee’s monthly income at approximately half of the obligor’s
income
**********
Duttenhofer v. Duttenhofer, 474 So.2d 251 (Fla.App. 3 Dist. 1985)
“The courts are charged with an obligation to protect
spouses[fn*] — not only women — when considering the equitable
distribution of marital assets and the award of alimony in connection
with the dissolution of a marriage. See Canakaris v. Canakaris, 382
So.2d 1197 (Fla. 1980). The reason that courts and legislatures become
concerned with the plight of a divorcing spouse is not, as Judge
Pearson suggests, the expression of gallantry or paternalism, but is
instead the product of a practical motive: society's interest in insuring
that individuals — male or female — are not summarily dismissed and
tossed into the streets to become wards of society dependent upon the
public dole. The purpose of alimony is to render a spouse selfsupporting or to offer rehabilitation until the newly independent
spouse is able to earn a livelihood.”
**********
Elliott v. Elliott, 867 So.2d 1198 (Fla.App. 5 Dist. 2004)
Trial court erred in failing to attribute interest income to wife for
purposes of alimony and child support; because husband presented
evidence of potential rates of return between 1.85% and 5% on
substantial liquid assets awarded to wife, court should have considered
interest available to her [see 61.08(2)(g), Fla. Stat.; McLean v.
McLean, 652 So. 2d 1178 (Fla. 2d DCA 1995)]; trial court could also
consider whatever portion of liquid assets was needed by wife for
attorneys' fees and down payment on house.
**********
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Appendix
Gerthe v. Gerthe, 857 So.2d 306 (Fla.App. 2 Dist. 2003)
In the evidence showed that the unemployed obligor-wife had
debilitating pain following an accident, had a high school education,
and had last worked in 1994; nonetheless, without any evidence to
support its decision, the trial court found she was able to work at least
part-time and it imputed income to her. The Second District reversed.
**********
Gruber v. Gruber, 857 So.2d 329 (Fla.App. 2 Dist. 2003)
Summary: The Second District Court of Appeal reversed a trial court's
order that reduced an unemployed husband's alimony obligation but
failed to terminate it because the court decided the husband was
probably capable of doing some kind of work and on that ground
imputed income to him. There was no evidence in the record to
support imputing income to the husband; rather, the evidence
exclusively showed that he had serious health problems and had been
deemed totally disabled by two doctors and the Social Security
Administration.
**********
Hillier v. Iglesias, 901 So.2d 947 (Fla.App. 4 Dist. 2005)
Chief Justice Farmer, concurring specially.
“I join in the reversal of the increase but I would also reverse the
refusal to eliminate alimony entirely. The only undisputed purpose for
alimony recognized in the cases in this state — the
recipient's need — is clearly lacking in this case. Even if she had a
need for alimony when the marriage was dissolved, it is obvious that
she no longer does.
The former wife's rationale for keeping alimony going is that it is
necessary to allow her to live in the style to which they were
accustomed during marriage. I believe she misunderstands the purpose
behind the factor relating to standard of living. In fact I believe the
cases have given this factor an importance far beyond its intended role.
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Appendix
The factors that the court is required to consider in fixing an amount
of permanent alimony are specified by statute. § 61.08(2), Fla. Stat.
(2005). The statute says:
"In determining a proper award of alimony or maintenance, the court
shall consider all relevant
economic factors, including but not limited to:
(a) The standard of living established during the marriage.
(b) The duration of the marriage.
(c) The age and the physical and emotional condition of each party.
(d) The financial resources of each party, the non-marital and the
marital assets and liabilities
distributed to each.
(e) When applicable, the time necessary for either party to acquire
sufficient education or training to enable such party to find appropriate
employment.
(f) The contribution of each party to the marriage, including, but not
limited to, services rendered in homemaking, child care, education,
and career building of the other party.
(g) All sources of income available to either party.
The court may consider any other factor necessary to do equity and
justice between the parties."
Id. I note that the statute directs the court to consider all relevant"
factors but does not specify any listed factor as always relevant. I also
note that the statute does not make any of these factors more important
than another. Nor does the statute stipulate that any particular factor is
always
dispositive.
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Appendix
This listing of "relevant economic factors" was added to the statute in
1978 and was obviously part of the statute at the time Canakaris was
decided in 1980. In amending the statute the legislature did not adopt a
statutory standard for determining when to award alimony. In short,
the legislature did not intend to overturn the line of cases (cited in the
majority opinion) holding that the purpose of alimony is to provide the
necessities of life to a needy former spouse. It is clear that the statute
does not modify the foundation facts for all alimony awards, namely
need and ability.
From the actual text employed in these statutory factors, I think it is
clear that the standard-of-living factor is obviously not applicable in
every case. For example, in a marriage of modest assets and income
with only one spouse having income, it would be absurd to think the
paying spouse could maintain two households at the same standard
of living after the dissolution. Dividing a standard of living on a
$50,000 annual income into two new households does not result in
the two halves each remaining at the $50,000 level. Clearly the
standard-of-living factor must be intended to apply only when
"equity" would make it so.
If the standard-of-living is not a super — or omnipresent — factor in
setting the amount of alimony, it must have only a case specific, and
more limited purpose. I think its intended use was to avoid having
alimony set at bare subsistence levels when the standard of living
during marriage was significantly better and the payor has the ability
to pay more than minimum wage, so to speak. The middle class
professional, as well as the wealthy plutocrat, who exposes the spouse
to a standard during marriage beyond the mere necessaries of life
should be required to do better than mere subsistence with alimony.
The purpose of the standard-of-living factor, therefore, is not to
equalize the post marital lifestyle. Instead it is intended to avoid
allowing the payor who makes enough to get away with mere
subsistence.
Beyond that concept I do not believe the standard-of-living factor has
much, if anything at all, to do with setting the amount of alimony in
many cases. I do not think it is even relevant to do equity where both
former spouses have annual earnings in the upper 10% of all incomes
- 102 -
Appendix
in this country. And I certainly do not agree, as the former wife argues
here, that it is an imperative requirement in maintaining alimony long
after the recipient has attained the income level she enjoys. Cf. Kahn v.
Kahn, 78 So.2d 367, 368 (Fla. 1955) ("We do not construe the
marriage status, once achieved, as conferring on the former wife of a
ship-wrecked marriage the right to live a life of veritable ease with no
effort and little incentive on her part to apply such talent as she may
possess to making her own way.").
In my opinion the essential need for any alimony at all is always
relevant as a determinative factor. Because it is clear that the evidence
in this case demonstrates beyond any doubt that
she no longer has any need for alimony, I would reverse on that issue
and direct the trial court to enter an order terminating all alimony.”
**********
Jaffy v. Jaffy, 4D05-3656 (Fla.App. 4 Dist. 6-27-2007)
“The court also erred in finding that no plan of rehabilitation is
possible because of her "deranged" lack of interest in working — that
any attempt to require her to work would be "doomed to failure." That
cannot possibly be a valid justification for refusing to limit alimony to
rehabilitation for a spouse who has a college education and is young
enough and able to become self-supporting. If it were valid, there
would be no reason for any able spouse to try to become selfsupporting. See Evans v. Evans, 443 So.2d 233, 235 (Fla. 1st DCA
1983) ("To award her permanent periodic alimony . . . for the rest of
her life would appear to impair any desire she might have to strive
forward financially.").
Adopting such a rationale would turn the need factor in alimony into a
desire or want test. This rationale directly conflicts with the essential
purpose of alimony to those who need such support. The trial court's
reason for finding the wife in need of permanent support is therefore
legally unsustainable.
**********
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Appendix
Kahn v. Kahn, 78 So.2d 367 (Fla. 1955) as referenced in Hillier v.
Iglesias
“And, indeed, until recent years, a divorced wife had little prospect of
being able to work and earn a livelihood, and it was essential to a wellordered society that she be appropriately maintained by her estranged
husband so that she would not become a charge on the community.
Times have now changed. The broad, practically unlimited
opportunities for women in the business world of today are a matter of
common knowledge. Thus, in an era where the opportunities for selfsupport by the wife are so abundant, the fact that the marriage has been
brought to an end because of the fault of the husband does not
necessarily entitle the wife to be forever supported by a former
husband who has little, if any, more economic advantages than she
has. We do not construe the marriage status, once achieved, as
conferring on the former wife of a ship-wrecked marriage the right to
live a life of veritable ease with no effort and little incentive on her
part to apply such talent as she may possess to making her own way.”
**********
Olsen v. Olsen, 98 Idaho 10 (1976)
Read Justice Shepard's dissent starting on page 3 that refers to alimony
as involuntary servitude and gives the rationale for alimony reform.
**********
Pimm v. Pimm, 601 So.2d 534 (Fla. 1992)
Indicates that the post judgment retirement of a spouse who is
obligated to make support or alimony payments pursuant to a
judgment of dissolution of marriage is a change of circumstance that
may be considered together with other relevant factors and applicable
law upon a petition to modify such alimony or support payments.
**********
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Appendix
Sisson v. Sisson, 336 So.2d 1129 (Fla. 1976)
Nevertheless, the purpose of alimony is only to require that the needs
of one spouse be met by the other to the extent that he or she has the
ability to pay.
**********
Sussman v. Sussman, 915 So.2d 281 (Fla.App. 4 Dist. 2005)
While the standard of living of the marriage was obviously substantial,
it is also clear that both parties cannot enjoy the same standard of
living as they did during the marriage. The approximately $6,000 per
month in combined income cannot support two separately at the same
standard of living that the parties together enjoyed. See Pirino v.
Pirino, 549 So.2d 219 (Fla. 5th DCA 1989). "Clearly the husband
cannot be required to maintain the wife's standard of living when this
maintenance stretches beyond his financial capacity." Id. at 220.
However, an alimony award should ensure that considering all of the
circumstances, one party is not "shortchanged." Canakaris, 382 So.2d
at 1204.
**********
Vega v. Swait, 4D07-932 (Fla.App. 4 Dist. 8-1-2007)
“We have previously said:
Unless there is some showing on the part of the wife that the husband
terminated or reduced his employment in order to keep from paying
alimony and that he was relying upon his present wife for his living
expenses in completion of the scheme, we can see no possibility of
relevance concerning
the present spouse's income.”
**********
Woolf v. Woolf, 901 So.2d 905 (Fla.App. 4 Dist. 2005)
- 105 -
Appendix
“In Thomas v. Thomas, 589 So.2d 944, 947 (Fla. 1st DCA 1991), the
court discussed the "clean hands doctrine" as preventing a court from
relieving a party of its support obligation where the decrease in
financial ability is brought about voluntarily, "for example, permitting
a thriving business to be closed down and making no effort to find
other employment . . .". The evidence in this case shows that the
former husband's business was anything but thriving and that he did
try to find other employment, making multiple job contacts, working
with a headhunter and an employment consultant and, in fact, securing
alternative employment as a lawyer for what turned out to be a
relatively short period. This is perhaps the best evidence of the good
faith nature of his job search. See Parker Lumber Co. v. Hart, 497
So.2d 948 (Fla. 1st DCA 1986) (citing Stahl v. Southeastern X-Ray,
447 So.2d 399 (Fla. 1st DCA 1984) (concluding that obtaining and
performing a full-time job constitutes an adequate job search for
purposes of workers' compensation "work search" rule)). We note that
this latter employment was at less than half the income imputed to
him, yet even at that compensation level he could not produce
sufficient business to survive.
We recognize that a strong showing is required before a
modification is granted upon a change of economic conditions,
especially where the party seeking reduction is operating in an
entrepreneurial capacity. Thomas, 589 So.2d at 947. This is
because an entrepreneur can easily record a drastic fluctuation
in income by the degree of initiative employed in securing and
accepting remunerative work or business. Id; O'Brien v. O'Brien, 407
So.2d 374, 375 (Fla. 1st DCA 1981). However, in this case the nature
of the former husband's work, the fate of the dot.com bubble, and the
sudden loss of his partner and client base were all undisputed. Based
on these circumstances, we conclude that the former husband has met
this high burden.”
Definition of the “Clean Hand Doctrine as stated in Schetter v.
Schetter, 279 So.2d 58 (Fla.App. 4 Dist. 1973) states that:
“There is perhaps no principle more strongly ingrained
in equity jurisprudence than the clean hands doctrine:
- 106 -
Appendix
"One who seeks the aid of equity must do so with
clean hands. This maxim is one of the general and
fundamental principles of equity jurisprudence. It is the
counterpart in equity of the defense of entrapment in
criminal law.
"Equity is a court of conscience; it demands fair
dealing in all who seek relief, and requires decency,
good faith, fairness, and justice. Equity cannot be
invoked for selfish or ulterior purposes.
"Where a litigant fails to meet such a standard
equity will deny all relief, and if both parties are at
fault, relief will be withheld from both." 12 Fla.Jur.,
Equity § 54, pp. 211-212.”
**********
Frivolous Lawsuits Defined:
Yakavonis V. Dolphin Petroleum, Inc., 4D05-3653 (Fla. App. 4 Dist.
2006) it states:
”We recognize that to some extent, the definition of
"frivolous" is incapable of precise determination.
Nevertheless, a review of Florida case law reveals that
there are established guidelines for determining when
an action is frivolous. These include where a case is
found:
a. to be completely without merit in law and
cannot be supported by a reasonable
argument for an extension, modification or
reversal of existing law;
b. to be contradicted by overwhelming
evidence;
c. as having been undertaken primarily to
delay or prolong the resolution of the
litigation, or to harass or maliciously injure
- 107 -
Appendix
another; or as asserting material factual
statements that are false.”
Table of Contents
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How To Modify Your Alimony Payments The Pro Se Self-Help Guidebook Series www.panama-publishing.com

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