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RULE 12.000. PREFACE
RULE 12.005 TRANSITION RULE
RULE 12.010 SCOPE, PURPOSE, AND TITLE
RULE 12.020. APPLICABILITY OF FLORIDA RULES OF CIVIL PROCEDURE
RULE 12.030. NONVERIFICATION OF PLEADINGS
RULE 12.050. WHEN ACTION COMMENCED
RULE 12.060. TRANSFERS OF ACTIONS
RULE 12.070. PROCESS
RULE 12.080 SERVICE OF PLEADINGS AND PAPERS
RULE 12.090. TIME
RULE 12.100 PLEADINGS AND MOTIONS
RULE 12.105 SIMPLIFIED DISSOLUTION PROCEDURE
RULE 12.110 GENERAL RULES OF PLEADING
RULE 12.120 PLEADING SPECIAL MATTERS
RULE 12.130 DOCUMENTS SUPPORTING ACTION OR DEFENSE
RULE 12.140. DEFENSES
RULE 12.150. SHAM PLEADINGS
RULE 12.160. MOTIONS
RULE 12.170. CROSSCLAIMS
RULE 12.180. THIRD-PARTY PRACTICE
RULE 12.190 AMENDED AND SUPPLEMENTAL PLEADINGS
RULE 12.200. CASE MANAGEMENT AND PRETRIAL CONFERENCES
RULE 12.210 PARTIES
RULE 12.230. INTERVENTIONS
RULE 12.240. INTERPLEADER
RULE 12.250. MISJOINDER AND NONJOINDER OF PARTIES
RULE 12.260. SURVIVOR; SUBSTITUTION OF PARTIES
RULE 12.270. CONSOLIDATION; SEPARATE TRIALS
RULE 12.280 GENERAL PROVISIONS GOVERNING DISCOVERY
RULE 12.285 MANDATORY DISCLOSURE
RULE 12.287 FINANCIAL AFFIDAVITS IN ENFORCEMENT AND CONTEMPT PROCEEDINGS
RULE 12.290. DEPOSITIONS BEFORE ACTION OR PENDING APPEAL
RULE 12.300. PERSONS BEFORE WHOM DEPOSITIONS MAY BE TAKEN
RULE 12.310. DEPOSITIONS UPON ORAL EXAMINATION
RULE 12.320. DEPOSITIONS UPON WRITTEN QUESTIONS
RULE 12.330. USE OF DEPOSITIONS IN COURT PROCEEDINGS
RULE 12.340. INTERROGATORIES TO PARTIES
RULE 12.350. PRODUCTION OF DOCUMENTS AND THINGS AND ENTRY UPON LAND FOR INSPECTION AND OTHER PURPOSES
RULE 12.351. PRODUCTION OF DOCUMENTS AND THINGS WITHOUT DEPOSITION
RULE 12.360 EXAMINATION OF PERSONS
RULE 12.363 EVALUATION OF MINOR CHILD
RULE 12.365 EXPERT WITNESSES
RULE 12.370. REQUESTS FOR ADMISSION
RULE 12.380 FAILURE TO MAKE DISCOVERY; SANCTIONS
RULE 12.390. DEPOSITIONS OF EXPERT WITNESSES
RULE 12.400. CONFIDENTIALITY OF RECORDS AND PROCEEDINGS
RULE 12.407. TESTIMONY AND ATTENDANCE OF MINOR CHILD
RULE 12.410. SUBPOENA
RULE 12.420. DISMISSAL OF ACTIONS
RULE 12.430. DEMAND FOR JURY TRIAL; WAIVER
RULE 12.431. TRIAL JURY
RULE 12.440 SETTING ACTION FOR TRIAL
RULE 12.450. EVIDENCE
RULE 12.460. CONTINUANCES
RULE 12.470 EXCEPTIONS UNNECESSARY
RULE 12.480. MOTION FOR A DIRECTED VERDICT
RULE 12.481. VERDICTS
RULE 12.490. GENERAL MASTERS
RULE 12.491. CHILD SUPPORT ENFORCEMENT
RULE 12.492 SPECIAL MASTERS
RULE 12.500. DEFAULTS AND FINAL JUDGMENTS THEREON
RULE 12.510. SUMMARY JUDGMENT
RULE 12.520. VIEW
RULE 12.530. MOTIONS FOR NEW TRIAL AND REHEARING; AMENDMENTS OF JUDGMENTS
RULE 12.540. RELIEF FROM JUDGMENT, DECREES, OR ORDERS
RULE 12.550. EXECUTIONS AND FINAL PROCESS
RULE 12.560. DISCOVERY IN AID OF EXECUTION
RULE 12.570. ENFORCEMENT OF JUDGMENTS
RULE 12.580. WRIT OF POSSESSION
RULE 12.590. PROCESS IN BEHALF OF AND AGAINST PERSONS NOT PARTIES
RULE 12.600. DEPOSITS IN COURT
RULE 12.610. INJUNCTIONS FOR DOMESTIC AND REPEAT VIOLENCE
RULE 12.611. CENTRAL GOVERNMENTAL DEPOSITORY
RULE 12.615. CIVIL CONTEMPT IN SUPPORT MATTERS
RULE 12.620. RECEIVERS
RULE 12.625. PROCEEDINGS AGAINST SURETY ON JUDICIAL BONDS
RULE 12.630. EXTRAORDINARY REMEDIES
RULE 12.740. FAMILY MEDIATION
RULE 12.741. MEDIATION RULES
RULE 12.750. FAMILY SELF-HELP PROGRAMS
RULE 12.000. PREFACE
These rules consist of two separate sections. Section I contains
the procedural rules governing family law matters and their commentary.
Section II contains forms, commentary, and appendices. The commentary
and appendices to the forms are included to assist litigants unrepresented
by counsel and do not, in and of themselves, constitute official
rules or commentary of the Florida Supreme Court.
Commentary
1995 Adoption. These rules were adopted after the Florida
Supreme Court determined that separate rules for family court procedure
were necessary. See In re Florida R. Fam. Ct. P., 607 So. 2d 396
(Fla. 1992). The court recognized that family law cases are different
from other civil matters, emphasizing that the 1993 creation of
family divisions in the circuit courts underscored the differences
between family law matters and other civil matters. In adopting
the family law rules, the court stressed the need for simplicity
due to the large number of pro se litigants (parties without counsel)
in family law matters. In an effort to assist the many pro se litigants
in this field, the court has included simplified forms and instructional
commentary in these rules. See Section II. The instructional commentary
to the forms refers to these rules or the Florida Rules of Civil
Procedure, where applicable.
The forms originally were adopted by the court pursuant to Family
Law Rules of Procedure, No. 84,337 (Fla. July 7, 1995); In re Petition
for Approval of Forms Pursuant to Rule 10-1.1(b) of the Rules Regulating
the Florida Bar--Stepparent Adoption Forms, 613 So. 2d 900 (Fla.
1992); Rules Regulating the Florida Bar--Approval of Forms, 581
So. 2d 902 (Fla. 1991).
RULE 12.005. TRANSITION RULE
These rules shall apply to all family law cases effective January
1, 1996. Any action taken in a family law case before January 1,
1996, that conformed to the then-effective rules or statutes governing
family law cases, will be regarded as valid during the pendency
of the litigation.
Commentary
1995 Adoption. This rule provides for an effective date of January
1, 1996, for these Florida Family Law Rules of Procedure. Under
this rule, any action taken in a family law matter before January
1, 1996, will be regarded as valid during the pendency of the litigation
so long as that action was taken in accordance with the then-effective
rules or statutes governing family law cases. Any action taken after
January 1, 1996, in new or pending family law cases will be governed
by these rules.
RULE 12.010. SCOPE, PURPOSE, AND TITLE
(a) Scope.
(1) These rules apply to all actions concerning family matters,
including actions concerning domestic and repeat violence, except
as otherwise provided by the Florida Rules of Juvenile Procedure
or the Florida Probate Rules. "Family matters," "family law matters,"
or "family law cases" as used within these rules include, but are
not limited to, matters arising from dissolution of marriage, annulment,
support unconnected with dissolution of marriage, paternity, child
support, custodial care of or access to children (except as otherwise
provided by the Florida Rules of Juvenile Procedure), adoption,
proceedings for emancipation of a minor, declaratory judgment actions
related to premarital, marital, or post-marital agreements (except
as otherwise provided, when applicable, by the Florida Probate Rules),
injunctions for domestic and repeat violence, and all proceedings
for modification, enforcement, and civil contempt of these actions.
2) The form, content, procedure, and time for pleading in all special
statutory proceedings shall be as prescribed by the statutes governing
the proceeding unless these rules or the Florida Rules of Civil
Procedure, where applicable, specifically provide to the contrary.
All actions governed by these rules also shall be governed by the
Florida Evidence Code, which shall govern in cases where a conflict
with these rules may occur.
(b) Purpose.
(1) These rules shall be construed to secure the just, speedy, and
inexpensive determination of the procedures covered by them and
shall be construed to secure simplicity in procedure and fairness
in administration.
(2) Nothing shall prohibit any intake personnel in family law divisions
from assisting in the preparation of papers or forms to be filed
in any action under these rules.
(c) Title. These rules shall be known as the Florida Family Law
Rules of Procedure and abbreviated as Fla. Fam. L. R. P.
RULE 12.020. APPLICABILITY OF FLORIDA RULES OF CIVIL PROCEDURE
The Florida Rules of Civil Procedure are applicable in all family
law matters except as otherwise provided in these rules. These rules
shall govern in cases where a conflict with the Florida Rules of
Civil Procedure may occur. Whenever the Florida Rules of Civil Procedure
apply to family matters, the use of the words plaintiff, defendant,
and complaint within the context of the civil rules shall be interchangeable,
where appropriate, with the words, petitioner, respondent, and petition,
respectively.
Commentary
1995 Adoption. To avoid confusion among members of the bar who practice
in both family law and civil law areas, it is intended that as much
uniformity as possible be maintained between the Florida Family
Law Rules of Procedure and the Florida Rules of Civil Procedure.
To assist in this effort, the Florida Supreme Court determined that
the Florida Rules of Civil Procedure were to apply except as set
forth herein. Exceptions and additions to the Florida Rules of Civil
Procedure are contained in Florida Family Law Rules of Procedure
that are numbered to correspond to their civil rule counterparts.
For example, exceptions to Florida Rule of Civil Procedure 1.080
are contained in Florida Family Law Rule of Procedure 12.080.
RULE 12.030. NONVERIFICATION OF PLEADINGS
Verification of pleadings shall be governed by Florida Rule of Civil
Procedure 1.030.
RULE 12.050. WHEN ACTION COMMENCED
Commencement of actions shall be governed by Florida Rule of Civil
Procedure 1.050.
RULE 12.060. TRANSFERS OF ACTIONS
Transfers of actions shall be governed by Florida Rule of Civil
Procedure 1.060.
RULE 12.070. PROCESS
Upon the commencement of all family law actions, including proceedings
to modify a final judgment service of process shall be as set forth
in Florida Rule of Civil Procedure 1.070. The summons, cross-claim
summons, and third-party summons in family law matters shall be
patterned after Florida Family Law Form 12.910(a) and shall specifically
contain the following language:
WARNING: Rule 12.285, Florida Family Law Rules of Procedure,
requires certain automatic disclosure of documents and information.
Failure to comply can result in sanctions, including dismissal or
striking of pleadings.
This rule does not govern service of process in domestic and repeat
violence proceedings.
RULE 12.080. SERVICE OF PLEADINGS AND PAPERS
(a) Service.
(1) Family Law Actions Generally. Service of pleadings and
papers after commencement of all family law actions except domestic
and repeat violence shall be as set forth in Florida Rule of Civil
Procedure 1.080, except that rule 1.080 shall be expanded as set
forth in subdivisions (b) and (c) to include additional requirements
for service of recommended orders and for service on defaulted parties.
(2) Domestic and Repeat Violence Actions. Service of pleadings and
papers regarding domestic and repeat violence actions shall be governed
by Florida Family Law Rule of Procedure 12.610, where it is in conflict
with this rule.
(b) Service and Preparation of Orders and Judgments. A copy of all
orders or judgments involving family law matters except domestic
and repeat violence shall be transmitted by the court or under its
direction to all parties at the time of entry of the order or judgment.
The court may require that recommended orders, orders, or judgments
be prepared by a party. If the court requires that a party prepare
the recommended order, order, or judgment, the party shall furnish
the court with stamped, addressed envelopes to all parties for service
of the recommended order, order, or judgment. The court also may
require that any proposed recommended order, order, or judgment
that is prepared by a party be furnished to all parties no less
than 24 hours before submission to the court of the recommended
order, order, or judgment.
(c) Defaulted Parties. No service need be made on parties against
whom a default has been entered, except that:
(1) Pleadings asserting new or additional claims against defaulted
parties shall be served in the manner provided for service of summons
contained in Florida Rule of Civil Procedure 1.070.
(2) Notice of final hearings or trials and court orders shall be
served on defaulted parties in the manner provided for service of
pleadings and papers contained in Florida Rule of Civil Procedure
1.080.
(3) Final judgments shall be served on defaulted parties as set
forth in Florida Rule of Civil Procedure 1.080(h)(2).
Commentary
1995 Adoption. This rule provides that the procedure for service
shall be as set forth in Florida Rule of Civil Procedure 1.080 with
the following exceptions or additions to that rule. First, subdivision
(b) corresponds to and replaces subdivision (h)(1) of rule 1.080
and expands the rule to include recommended orders. Second, this
rule expands items that must be served on defaulted parties to ensure
that defaulted parties are at least minimally advised of the progress
of the proceedings. This rule is not intended to require the furnishing
of a proposed recommended order, proposed order, or proposed final
judgment to a defaulted party.
RULE 12.090. TIME
Time shall be governed by Florida Rule of Civil Procedure 1.090.
RULE 12.100. PLEADINGS AND MOTIONS
Pleadings and motions shall be governed by Florida Rule of Civil
Procedure 1.100.
Commentary
1995 Adoption. This rule provides that pleadings and motions are
to be governed by Florida Rule of Civil Procedure 1.100. The cover
sheets and disposition forms described in that rule shall be the
same cover sheets and disposition forms used in family law proceedings.
RULE 12.105. SIMPLIFIED DISSOLUTION PROCEDURE
(a) Requirements for Use. The parties to the dissolution may file
a petition for simplified dissolution if they certify under oath
that
(1) there are no minor or dependent children of the parties and
the wife is not now pregnant;
(2) the parties have made a satisfactory division of their property
and have agreed as to payment of their joint obligations; and
(3) the other facts set forth in Florida Family Law Form 12.901(a)
(Petition for Simplified Dissolution of Marriage) are true.
(b) Consideration by Court. The clerk shall submit the petition
to the court. The court shall consider the cause expeditiously.
The parties shall appear before the court in every case and, if
the court so directs, testify. The court, after examination of the
petition and personal appearance of the parties, shall enter a judgment
granting the dissolution (Florida Family Law Form 12.990(a)) if
the requirements of this rule have been established and there has
been compliance with the waiting period required by statute.
(c) Financial Affidavit and Settlement Agreement. The parties
must each file a financial affidavit (Family Law Form 12.901(d)
or 12.901(e)), and a marital settlement agreement (Family Law Form
12.901(h)).
(d) Final Judgment. Upon the entry of the judgment, the clerk shall
furnish to each party a certified copy of the final judgment of
dissolution, which shall be in substantially the form provided in
Family Law Form 12.990(a).
(e) Forms. The clerk or family law intake personnel shall provide
forms for the parties whose circumstances meet the requirements
of this rule and shall assist in the preparation of the petition
for dissolution and other papers to be filed in the action.
Commentary
1995 Adoption. This rule was previously contained in Florida Rule
of Civil Procedure 1.611, which included several unrelated issues.
Those issues are now governed by separate family law rules for automatic
disclosure, central governmental depository, and this rule for simplified
dissolution procedure. Under this rule, the parties must file a
financial affidavit (Family Law Form 12.901(d) or 12.901(e)), depending
on their income and expenses) and a marital settlement agreement
(Family Law Form 12.901(h)).
RULE 12.110. GENERAL RULES OF PLEADING
The general rules of pleading in Florida Rule of Civil Procedure
1.110 shall apply to these proceedings except that proceedings to
modify a final judgment in a family law matter shall be initiated
only pursuant to rule 1.110(h) and not by motion.
Commentary
1995 Adoption. This rule clarifies that final judgment modifications
must be initiated pursuant to a supplemental petition as set forth
in rule 1.110(h), rather than through a motion. Rule 1.110(h) is
to be interpreted to require service of process on a supplemental
petition as set forth in Florida Family Law Rule of Procedure 12.070.
RULE 12.120. PLEADING SPECIAL MATTERS
Pleading of special matters shall be governed by Florida Rule of
Civil Procedure 1.120.
RULE 12.130. DOCUMENTS SUPPORTING ACTION OR DEFENSE
Attachment of documents supporting an action or defense shall be
governed by Florida Rule of Civil Procedure 1.130.
RULE 12.140. DEFENSES
Defenses shall be governed by Florida Rule of Civil Procedure 1.140.
RULE 12.150. SHAM PLEADINGS
Sham pleadings shall be governed by Florida Rule of Civil Procedure
1.150.
RULE 12.160. MOTIONS
Motions shall be governed by Florida Rule of Civil Procedure 1.160.
RULE 12.170. COUNTERCLAIMS AND CROSSCLAIMS
Counterclaims and Crossclaims shall be governed by Florida Rule
of Civil Procedure 1.170.
RULE 12.180. THIRD-PARTY PRACTICE
Third-party practice shall be governed by Florida Rule of Civil
Procedure 1.180.
RULE 12.190 AMENDED AND SUPPLEMENTAL PLEADINGS
Amended and supplemental pleadings shall be governed by Florida
Rule of Civil Procedure 1.190.
RULE 12.200. CASE MANAGEMENT AND PRETRIAL CONFERENCES
(a) Case Management Conference.
(1) Family Law Proceedings, Generally. A case management
conference may be ordered by the court at any time on the court's
initiative. A party may request a case management conference 30
days after service of a petition or complaint. At such a conference
the court may:
(A) schedule or reschedule the service of motions, pleadings, and
other papers;
(B) set or reset the time of trials, subject to rule 12.440;
(C) coordinate the progress of the action if complex litigation
factors are present;
(D) limit, schedule, order, or expedite discovery;
(E) schedule disclosure of expert witnesses and the discovery of
facts known and opinions held by such experts;
(F) schedule or hear motions related to admission or exclusion of
evidence;
(G) pursue the possibilities of settlement;
(H) require filing of preliminary stipulations if issues can be
narrowed;
(I) refer issues to a master for findings of fact, if consent is
obtained as provided in rules 12.490 and 12.492 and if no significant
history of domestic or repeat violence that would compromise the
process is involved in the case;
(J) refer the parties to mediation if no significant history of
domestic or repeat violence that would compromise the mediation
process is involved in the case and consider allocation of expenses
related to the referral; or refer the parties to counseling if no
significant history of domestic or repeat violence that would compromise
the process is involved in the case and consider allocation of expenses
related to the referral;
(K) coordinate voluntary binding arbitration consistent with Florida
law if no significant history of domestic or repeat violence that
would compromise the process is involved in the case;
(L) appoint court experts and allocate the expenses for the appointments;
(M) refer the cause for a home study or psychological evaluation
and allocate the initial expense for that study;
(N) appoint an attorney or guardian ad litem for a minor child or
children if required and allocate the expense of the appointment;
and
(O) schedule other conferences or determine other matters that may
aid in the disposition of the action.
(2) Adoption Proceedings. A case management conference shall
be ordered by the court within 60 days of the filing of a petition
when
(A) there is a request for a waiver of consent to an adoption by
those persons required to consent by section 63.062, Florida Statutes;
(B) notice of the hearing on the petition to adopt is not afforded
a person whose consent is required but who has not consented;
(C) an intermediary, attorney, or agency is seeking fees or costs
in excess of those provided under sections 63.097 or 63.212(4),
Florida Statutes;
(D) an affidavit of diligent search and inquiry is filed in lieu
of personal service; or
(E) the court is otherwise aware that any person having standing
objects to the adoption.
(b) Pretrial Conference. After the action is at issue the
court itself may or shall on the timely motion of any party require
the parties to appear for a conference to consider and determine:
(1) proposed stipulations and the simplification of the issues;
(2) the necessity or desirability of amendments to the pleadings;
(3) the possibility of obtaining admissions of fact and of documents
that will avoid unnecessary proof;
(4) the limitation of the number of expert witnesses; and
(5) any matters permitted under subdivision (a) of this rule.
(c) Notice. Reasonable notice shall be given for a case management
conference, and 20 days' notice shall be given for a pretrial conference.
On failure of a party to attend a conference, the court may dismiss
the action, strike the pleadings, limit proof or witnesses, or take
any other appropriate action. Any documents that the court requires
for any conference shall be specified in the order. Orders setting
pretrial conferences shall be uniform throughout the territorial
jurisdiction of the court.
(d) Case Management and Pretrial Order. The court shall make an
order reciting the action taken at a conference and any stipulations
made. The order shall control the subsequent course of the action
unless modified to prevent injustice.
Commentary
1995 Adoption. This rule addresses issues raised by decisions
such as Dralus v. Dralus, 627 So. 2d 505 (Fla. 2d DCA 1993); Wrona
v. Wrona, 592 So. 2d 694 (Fla. 2d DCA 1991); and Katz v. Katz, 505
So. 2d 25 (Fla. 4th DCA 1987), regarding the cost of marital litigation.
This rule provides an orderly method for the just, speedy, and inexpensive
determination of issues and promotes amicable resolution of disputes.
This rule replaces and substantially expands Florida Rule of Civil
Procedure 1.200 as it pertained to family law matters. Under this
rule, a court may convene a case management conference at any time
and a party may request a case management conference 30 days after
service of a petition or complaint. The court may consider the following
additional items at the conference: motions related to admission
or exclusion of evidence, referral of issues to a master if consent
is obtained pursuant to the rules, referral of the parties to mediation,
referral of the parties to counseling, coordination of voluntary
binding arbitration, appointment of court experts, referral of the
cause for a home study psychological evaluation, and appointment
of an attorney or guardian ad litem for a minor child.
Committee Note
1997 Amendment. In In re Adoption of Baby E.A.W., 658 So. 2d 961
(Fla. 1995), and other cases involving protracted adoption litigation,
it becomes clear that the earlier the issue of notice is decided
by the court, the earlier the balance of the issues can be litigated.
Because both parents' constitutional standing and guarantees of
due process require notice and an opportunity to be heard, this
rule amendment will help solve the problems of adoption litigation
lasting until a child's third, fourth, or even fifth birthday. Furthermore,
this rule will encourage both parents to be more candid with intermediaries
and attorneys involved in the adoption process.
In E.A.W., 658 So. 2d at 979, Justice Kogan, concurring in part
and dissenting in part, stated: "I personally urge the Family Law
Rules Committee . . . to study possible methods of expediting review
of disputes between biological and adoptive parents." This rule
expedites resolution of preliminary matters concerning due process
in difficult adoption disputes. This rule also mandates early consideration
of the child's rights to due process at early stages of adoption
litigation.
Noncompliance with subdivision (a)(2) of this rule shall not invalidate
an otherwise valid adoption.
RULE 12.210 PARTIES
Parties to an action filed under the Florida Family Law Rules of
Procedure shall be governed by Florida Rule of Civil Procedure 1.210,
except that rule 1.210 shall not be read to require that a child
is an indispensable party for a dissolution of marriage or child
custody proceeding.
RULE 12.230. INTERVENTIONS
Interventions shall be governed by Florida Rule of Civil Procedure
1.230.
RULE 12.240. INTERPLEADER
Interpleaders shall be governed by Florida Rule of Civil Procedure
1.240.
RULE 12.250. MISJOINDER AND NONJOINDER
OF PARTIES
Misjoinder and nonjoinder of parties shall be governed by Florida
Rule of Civil
Procedure 1.250.
RULE 12.260. SURVIVOR; SUBSTITUTION OF
PARTIES
Survivors and the substitution of parties shall be governed by Florida
Rule of Civil Procedure 1.260.
RULE 12.270. CONSOLIDATION; SEPARATE TRIALS
Consolidation or separation of trials shall be governed by Florida
Rule of Civil Procedure 1.270.
RULE 12.280 GENERAL PROVISIONS GOVERNING
DISCOVERY
Florida Rule of Civil Procedure 1.280 shall govern general provisions
concerning discovery in family law matters with the following exceptions:
(a) Supplementing of Responses. A party is under a duty to amend
a prior response or disclosure if the party:
(1) obtains information or otherwise determines that the prior response
or disclosure was incorrect when made;
(2) obtains information or otherwise determines that the prior response
or disclosure, although correct when made, is no longer materially
true or complete.
(b) Time for Filing Supplemental Responses. Any supplemental response
filed pursuant to this rule shall be filed as soon as possible after
discovery of the incorrect information or change, but in no case
shall the supplemental response be filed later than 24 hours before
any applicable hearing absent a showing of good cause.
(c) Documents Considered Confidential. A determination as to the
confidentiality of a court record shall be made in accordance with
Florida Rule of Judicial Administration 2.051.
(d) Sealing of Records. Records found to be confidential under Florida
Rule of Judicial Administration 2.051 shall be sealed on request
of a party.
Commentary
1995 Adoption. Florida Rule of Civil Procedure 1.280 is to govern
the general discovery provisions in family law matters with the
exceptions set forth above. Subdivision (a) of this rule alters
rule 1.280(e) by placing a duty on parties in family law matters
to supplement responses. Under rule 1.280(e), no supplemental response
is required. Subdivisions (b), (c), and (d) of this rule are in
addition to the general requirements of rule 1.280 and have no counterparts
in the Rules of Civil Procedure. Subdivisions (c) and (d) have been
implemented in recognition of the fact that family law cases often
involve sensitive information that should be deemed confidential
under Florida Rule of Judicial Administration 2.051. For instance,
financial records filed may contain information regarding a family
business, which, if public, could provide competitors with an advantage
and adversely affect the family business.
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
or repeat 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 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 agreed to by the parties, the following documents shall
be served on the other party:
(1) A financial affidavit in substantial conformity with Family
Law Form 12.901(d) if the party's gross annual income is less than
$50,000, or Family Law Form 12.901(e) 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 must 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
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 Supplement
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 Family
Law Form 12.901(d) if the party's gross annual income is less than
$50,000, or Family Law Form 12.901(e) 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 also must be
filed with the court. A party may request, by using the Standard
Family Law Interrogatories, or the court on its own motion may order,
a party whose gross annual income is less than $50,000 to complete
Family Law Form 12.901(e).
(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.
(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.
(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 also shall 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 also may 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 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 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.
(j) Child Support Guidelines Worksheet. If the case involves
child support, the parties shall file with the court at or prior
to a hearing to establish or modify child support a Child Support
Guidelines Worksheet in substantial conformity with Florida Family
Law Form 12.901(g). This requirement cannot be waived by the parties.
(k) Place of Production.
(1) Unless otherwise agreed by the parties or ordered by the court,
all production required by this rule shall take place in the county
where the action is pending and in the office of the attorney for
the party receiving production. Unless otherwise agreed by the parties
or ordered by the court, if a party does not have an attorney or
if the attorney does not have an office in the county where the
action is pending, production shall take place in the county where
the action is pending at a place designated in writing by the party
receiving production, served at least 5 days before the due date
for production.
(2) If venue is contested, on motion by a party the court shall
designate the place where production will occur pending determination
of the venue issue.
(kl) Failure of Defaulted Party to Comply. Nothing in this
rule shall be deemed to preclude the entry of a final judgment when
a party in default has failed to comply with this rule.
Commentary
1995 Adoption. This rule creates a procedure for automatic financial
disclosure in family law cases. By requiring production at an early
stage in the proceedings, it is hoped that the expense of litigation
will be minimized. See Dralus v. Dralus, 627 So. 2d 505 (Fla. 2d
DCA 1993); Wrona v. Wrona, 592 So. 2d 694 (Fla. 2d DCA 1991); and
Katz v. Katz, 505 So. 2d 25 (Fla. 4th DCA 1987). A limited number
of requirements have been placed upon parties making and spending
less than $50,000 annually unless otherwise ordered by the court.
In cases where the income or expenses of a party are equal to or
exceed $50,000 annually, the requirements are much greater. Except
for the provisions as to financial affidavits, other than as set
forth in subdivision (k), any portion of this rule may be modified
by agreement of the parties or by order of the court. For instance,
upon the request of any party or on the court's own motion, the
court may order that the parties to the proceeding comply with some
or all of the automatic mandatory disclosure provisions of this
rule even though the parties do not meet the income requirements
set forth in subdivision (d). Additionally, the court may, on the
motion of a party or on its own motion, limit the disclosure requirements
in this rule should it find good cause for doing So.
Committee Notes
1998 Amendment. If one party has not provided necessary financial
information for the other party to complete a child support guidelines
worksheet, a good faith estimate should be made.
1997 Amendment. Except for the form of financial affidavit used,
mandatory disclosure is made the same for all parties subject to
the rule, regardless of income. The amount of information required
to be disclosed is increased for parties in the under-$50,000 category
and decreased for parties in the $50,000-or-over category. The standard
family law interrogatories are no longer mandatory, and their answers
are designed to be supplemental and not duplicative of information
contained in the financial affidavits.
RULE 12.287. FINANCIAL AFFIDAVITS IN ENFORCEMENT
AND CONTEMPT PROCEEDINGS
Any party in an enforcement or contempt proceeding may serve upon
any other party a written request to file and serve a financial
affidavit if the other party's financial circumstances are relevant
in the proceeding. The party to whom the request is made shall file
and serve the requested financial affidavit within 10 days after
the service of the written request. The court may allow a shorter
or longer time. The financial affidavit shall be in substantial
conformity with Florida Family Law Form 12.901(d) (Short Form),
all sections of which shall be completed.
RULE 12.290. DEPOSITIONS BEFORE ACTION
OR PENDING APPEAL
Depositions before an action or pending an appeal shall be governed
by Florida Rule of Civil Procedure 1.290.
RULE 12.300. PERSONS BEFORE WHOM DEPOSITIONS
MAY BE TAKEN
Provisions regarding who may take depositions shall be governed
by Florida Rule of Civil Procedure 1.300.
RULE 12.310. DEPOSITIONS UPON ORAL EXAMINATION
Depositions upon oral examination shall be governed by Florida Rule
of Civil Procedure 1.310.
RULE 12.320. DEPOSITIONS UPON WRITTEN
QUESTIONS
Depositions upon written questions shall be governed by Florida
Rule of Civil Procedure 1.320.
RULE 12.330. USE OF DEPOSITIONS IN COURT
PROCEEDINGS
Use of depositions in court proceedings shall be governed by Florida
Rule of Civil Procedure 1.330.
RULE 12.340. INTERROGATORIES TO PARTIES
Interrogatories to parties shall be governed generally by Florida
Rule of Civil Procedure 1.340, with the following exceptions.
(a) Service of Interrogatories.
(1) Initial Interrogatories. Initial interrogatories
to parties in original and enforcement actions shall be those set
forth in Family Law Form 12.930(b). Parties governed by the mandatory
disclosure requirements of rule 12.285, may serve the interrogatories
set forth in Family Law Form 12.930(b) as set forth in rule 1.340.
(2) Modification Interrogatories. Interrogatories to parties
in cases involving modification of a final judgment shall be those
set forth in Family Law Form 12.930(c). Parties governed by the
mandatory disclosure requirements of rule 12.285 may serve the interrogatories
set forth in Family Law Form 12.930(c) as set forth in rule 1.340.
(b) Additional Interrogatories. Ten interrogatories, including
subparts, may be sent to a party, in addition to the standard interrogatories
contained in Family Law Form 12.930(b) or Family Law Form 12.930(c).
A party must obtain permission of the court to send more than ten
additional interrogatories.
Commentary
1995 Adoption. For parties governed under the disclosure
requirements of rule 12.285(d) (income or expenses of $50,000 or
more), the answers to the interrogatories contained in Form 12.930(b)
must be automatically served on the other party. For parties governed
under the disclosure requirements of rule 12.285(c) (income and
expenses under $50,000), the service of the interrogatories contained
in Form 12.930(b) is optional as provided in Florida Rule of Civil
Procedure 1.340. Additionally, under this rule, 10 additional interrogatories,
including subparts, may be submitted beyond those contained in Family
Law Form 12.930(b). Leave of court is required to exceed 10 additional
interrogatories. The provisions of Florida Rule of Civil Procedure
1.340 are to govern the procedures and scope of the additional interrogatories.
Committee Note
1997 Amendment. The rule was amended to conform to the changes made
to rule 12.285, Mandatory Disclosure.
RULE 12.350. PRODUCTION OF DOCUMENTS
AND THINGS AND ENTRY UPON LAND FOR INSPECTION AND OTHER PURPOSES
Production of documents and things and entry upon land for inspection
and other purposes shall be governed by Florida Rule of Civil Procedure
1.350.
RULE 12.351. PRODUCTION OF DOCUMENTS
AND THINGS WITHOUT DEPOSITION
Production of documents and things without deposition shall be governed
by Florida Rule of Civil Procedure 1.351.
RULE 12.360 EXAMINATION OF PERSONS
Florida Rule of Civil Procedure 1.360 shall govern general provisions
concerning the examination of persons in family law matters, except
that examinations permitted under rule 1.360(a)(1) may include,
but are not limited to, examinations involving physical or mental
condition, employability or vocational testing, genetic testing,
or any other type of examination related to a matter in controversy.
Commentary
1995 Adoption. This rule expands Florida Rule of Civil Procedure
1.360 to specify common examinations in family law matters, but
this rule is not intended to be an exclusive list of allowable examinations.
Rule 1.360 should be interpreted to discourage subjecting children
to multiple interviews, testing, and evaluations.
RULE 12.363. EVALUATION OF MINOR CHILD
(a) Appointment of Mental Health Professional or Other Expert.
(1) When the issue of visitation, parental responsibility, or residential
placement of a child is in controversy, the court, on motion of
any party or the court's own motion, may appoint a licensed mental
health professional or other expert for an examination, evaluation,
testing, or interview of any minor child or to conduct a social
or home study investigation. The parties may agree on the particular
expert to be appointed, subject to approval by the court. If the
parties have agreed, they shall submit an order including the name,
address, telephone number, area of expertise, and professional qualifications
of the expert. If the parties have agreed on the need for an expert
and cannot agree on the selection, the court shall appoint an expert.
(2) After the examination, evaluation, or investigation, any party
may file a motion for an additional expert examination, evaluation,
interview, testing, or investigation by a licensed mental health
professional or other expert. The court upon hearing may permit
the additional examination, evaluation, testing, or interview based
on good cause shown that further examinations, testing, interviews,
or evaluations would be in the best interests of the minor child.
(3) Any order entered under this rule shall specify the issues to
be addressed by the expert.
(4) Any order entered under this rule may require that all interviews
of the child be recorded and the tapes be maintained as part of
the expert's file.
(5) The order appointing the expert shall include an initial allocation
of responsibility for payment.
(6) A copy of the order of appointment shall be provided immediately
to the expert by the court unless otherwise directed by the court.
The order shall direct the parties to contact the expert or investigator
appointed by the court to establish an appointment schedule to facilitate
timely completion of the evaluation.
(b) Providing of Reports.
(1) Unless otherwise ordered, the expert shall prepare and provide
a written report to the attorney for each party or the party, if
unrepresented, and the guardian ad litem, if appointed, a reasonable
time before any evidentiary hearing on the matter at issue. The
expert also shall send written notice to the court that the report
has been completed and that a copy of the written report has been
provided to the attorney for each party or the party, if unrepresented,
and the guardian ad litem, if appointed. In any event, the written
report shall be prepared and provided no later than 30 days before
trial or 75 days from the order of appointment, unless the time
is extended by order of the court.
(2) On motion of any party, the court may order the expert to produce
the expert's complete file to another qualified licensed mental
health professional, at the initial cost of the requesting party,
for review by such qualified licensed mental health expert, who
may testify.
(c) Testimony of Other Professionals. Any other expert who
has treated, tested, interviewed, examined, or evaluated a child
may testify only if the court determines that good cause exists
to permit the testimony. The fact that no notice of such treatment,
testing, interview, examination, or evaluation of a child was given
to both parents shall be considered by the court as a basis for
preventing such testimony.
(d) Communications with Court by Expert. No expert may communicate
with the court without prior notice to the parties and their attorneys,
who shall be afforded the opportunity to be present and heard during
any such communication between the expert and the court. A request
for communication with the court may be informally conveyed by letter
or telephone. Further communication with the court, which may be
conducted informally, shall be done only with notice to the parties.
(e) Use of Evidence. An expert appointed by the court shall be subject
to the same examination as a privately retained expert and the court
shall not entertain any presumption in favor of the appointed expert's
findings. Any finding or report by an expert appointed by the court
may be entered into evidence on the court's own motion or the motion
of any party in a manner consistent with the rules of evidence,
subject to cross-examination by the parties. The report shall not
be considered by the court before it is properly admitted into evidence.
Committee Note
1997 Adoption. This rule should be interpreted to discourage
subjecting children to multiple interviews, testing, and evaluations,
without good cause shown. The court should consider the best interests
of the child in permitting evaluations, testing, or interviews of
the child. The parties should cooperate in choosing a mental health
professional or individual to perform this function to lessen the
need for multiple evaluations.
This rule is not intended to prevent additional mental health professionals
who have not treated, interviewed, or evaluated the child from testifying
concerning review of the data produced pursuant to this rule.
This rule is not intended to prevent a mental health professional
who has engaged in long-term treatment of the child from testifying
about the minor child.
RULE 12.365 EXPERT WITNESSES
(a) Application. The procedural requirements in this rule shall
apply whenever an expert is appointed by the court or retained by
a party. This rule applies to all experts including, but not limited
to, medical, psychological, social, financial, vocational, and economic
experts. Where in conflict, this rule shall supersede Florida Rule
of Civil Procedure 1.360.
(b) Communication with Court by Expert. No expert may communicate
with the court without prior notice to the parties and their attorneys,
who shall be afforded the opportunity to be present and heard during
the communication between the expert and the court. A request for
communication with the court may be conveyed informally by letter
or telephone. Further communication with the court, which may be
conducted informally, shall be done only with notice to all parties.
(c) Use of Evidence. The court shall not entertain any presumption
in favor of a court-appointed expert's opinion. Any opinion by an
expert may be entered into evidence on the court's own motion or
the motion of any party in a manner consistent with the rules of
evidence, subject to cross-examination by the parties.
(d) Evaluation of Minor Child. This rule shall not apply to any
evaluation of a minor child under rule 12.363.
Committee Note
1998 Adoption. This rule establishes the procedure to be followed
for the use of experts. The District Court of Appeal, Fourth District,
has encouraged the use of court-appointed experts to review financial
information and reduce the cost of divorce litigation. Tomaino v.
Tomaino, 629 So. 2d 874 (Fla. 4th DCA 1993). Additionally, section
90.615(1), Florida Statutes, allows the court to call witnesses
whom all parties may cross-examine. See also Fed. R. Evid. 706 (trial
courts have authority to appoint expert witnesses).
RULE 12.370. REQUESTS FOR ADMISSION
Requests for admission shall be governed by Florida Rule of Civil
Procedure 1.370.
RULE 12.380 FAILURE TO MAKE DISCOVERY;
SANCTIONS
Florida Rule of Civil Procedure 1.380 shall govern the failure to
make discovery in family law matters and related sanctions, with
the following addition. A party may apply for an order compelling
discovery in the manner set forth in rule 1.380 for the failure
of any person to comply with any discovery request or requirement
under the family law rules, including, but not limited to, the failure
to comply with Florida Family Law Rule of Procedure 12.285.
RULE 12.390. DEPOSITIONS OF EXPERT WITNESSES
Depositions of expert witnesses shall be governed by Florida Rule
of Civil Procedure 1.390.
RULE 12.400. CONFIDENTIALITY OF RECORDS
AND PROCEEDINGS
(a) Closure of Proceedings or Records. Closure of court proceedings
or sealing of records may be ordered by the court only as provided
by Rule of Judicial Administration 2.051.
(b) In Camera Inspection. The court shall conduct an in camera inspection
of any records sought to be sealed and consider the contents of
the records in determining whether they should be sealed.
Commentary
1995 Adoption. Judicial proceedings and records should be public
except when substantial compelling circumstances, especially the
protection of children or of business trade secrets, require otherwise.
Family law matters frequently present such circumstances. It is
intended that this rule be applied to protect the interests of minor
children from offensive testimony and to protect children in a divorce
proceeding.
RULE 12.407. TESTIMONY AND ATTENDANCE
OF MINOR CHILD
No minor child shall be deposed or brought to a deposition, brought
to court to appear as a witness or to attend a hearing, or subpoenaed
to appear at a hearing without prior order of the court based on
good cause shown unless in an emergency situation. This provision
shall not apply to uncontested adoption proceedings.
Commentary
1995 Adoption. This rule is intended to afford additional
protection to minor children by avoiding any unnecessary involvement
of children in family law litigation. While due process considerations
prohibit an absolute ban on child testimony, this rule requires
that a judge determine whether a child's testimony is necessary
and relevant to issues before the court prior to a child being required
to testify.
RULE 12.410. SUBPOENA
Subpoenas shall be governed by Florida Rule of Civil Procedure 1.410.
RULE 12.420. DISMISSAL OF ACTIONS.
Dismissal of actions shall be governed by Florida Rule of Civil
Procedure 1.420, with the following two exceptions.
(a) Voluntary Dismissal. Unless otherwise specified in a notice
or stipulation, a voluntary dismissal shall be without prejudice
and shall not operate as an adjudication on the merits.
(b) Costs. Costs shall be assessed as provided in rule 1.420(d),
except that the court shall not require the payment of costs of
a previously dismissed claim, which was based upon or included the
same claim against the same adverse party as the current action.
Commentary
1995 Adoption. Subdivision (a), which amends Florida Rule of Civil
Procedure 1.420(a)(1), was added to eliminate the language of that
subdivision which reads "except that a notice of dismissal operates
as an adjudication on the merits when served by a plaintiff who
has once dismissed in any court an action based on or including
the same claim" and to specifically provide to the contrary. Subdivision
(b), which amends rule 1.420(d), was added to prevent the discouragement
of reconciliation.
RULE 12.430. DEMAND FOR JURY TRIAL; WAIVER
Demands for and waivers of jury trial shall be governed by Florida
Rule of Civil Procedure 1.430.
RULE 12.431. TRIAL JURY
Trials by jury shall be governed by Florida Rule of Civil Procedure
1.431.
RULE 12.440 SETTING ACTION FOR TRIAL
Florida Rule of Civil Procedure 1.440 shall govern general provisions
concerning setting an action for trial in family law matters, with
the following exceptions and additions.
RULE 12.450. EVIDENCE
Adverse witnesses, the record of excluded evidence, and the filing
of evidence shall be governed by Florida
Rule of Civil Procedure 1.450.
RULE 12.460. CONTINUANCES
Continuances shall be governed by Florida Rule of Civil Procedure
1.460.
RULE 12.470 EXCEPTIONS UNNECESSARY
Exceptions shall be governed by Florida Rule of Civil Procedure
1.470 except that no exception shall be necessary to an adverse
ruling other than as provided in rules 12.490 and 12.492.
Commentary
1995 Adoption. This rule amends subdivision (a) of rule 1.470
as it applies to family law matters to eliminate possible confusion
between common law exceptions and exceptions to recommendations
of a general master under rule 12.490 or a special master under
rule 12.492.
RULE 12.480. MOTION FOR A DIRECTED VERDICT
Motions for directed verdict shall be governed by Florida Rule of
Civil Procedure 1.480.
RULE 12.481. VERDICTS
Verdicts shall be governed by Florida Rule of Civil Procedure 1.481.
RULE 12.490 GENERAL MASTERS
(a) General Masters. Judges of the circuit court may appoint
as many general masters from among the members of The Florida Bar
in the circuit as the judges find necessary, and the general masters
shall continue in office until removed by the court. The order making
an appointment shall be recorded. Every person appointed as a general
master shall take the oath required of officers by the Constitution
and the oath shall be recorded before the master discharges any
duties of that office.
(b) Reference.
(1) No matter shall be heard by a general master without an appropriate
order of reference and the consent to the referral of all parties.
Consent, as defined in this rule, to a specific referral, once given,
cannot be withdrawn without good cause shown before the hearing
on the merits of the matter referred. Consent may be express or
may be implied in accordance with the requirements of this rule.
(A) A written objection to the referral to a general master must
be filed within 10 days of the service of the order of referral.
(B) If the time set for the hearing is less than 10 days after service
of the order of referral, the objection must be filed before commencement
of the hearing.
(C) If the order of referral is served within the first 20 days
after the service of the initial process, the time to file an objection
is extended to the time within which to file a responsive pleading.
(D) Failure to file a written objection within the applicable time
period is deemed to be consent to the order of referral.
(2) The order of referral shall be in substantial conformity with
Family Law Form 12.920(a), and shall contain the following language
in bold type:
A REFERRAL TO A GENERAL MASTER REQUIRES THE CONSENT OF ALL PARTIES.
YOU ARE ENTITLED TO HAVE THIS MATTER HEARD BEFORE A JUDGE. IF YOU
DO NOT WANT TO HAVE THIS MATTER HEARD BEFORE THE GENERAL MASTER,
YOU MUST FILE A WRITTEN OBJECTION TO THE REFERRAL WITHIN 10 DAYS
OF THE TIME OF SERVICE OF THIS ORDER. IF THE TIME SET FOR THE HEARING
IS LESS THAN 10 DAYS AFTER THE SERVICE OF THIS ORDER, THE OBJECTION
MUST BE MADE BEFORE THE HEARING. IF THIS ORDER IS SERVED WITHIN
THE FIRST 20 DAYS AFTER SERVICE OF PROCESS, THE TIME TO FILE AN
OBJECTION IS EXTENDED TO THE TIME WITHIN WHICH A RESPONSIVE PLEADING
IS DUE. FAILURE TO FILE A WRITTEN OBJECTION WITHIN THE APPLICABLE
TIME PERIOD IS DEEMED TO BE A CONSENT TO THE REFERRAL.
REVIEW OF THE REPORT AND RECOMMENDATIONS MADE BY THE GENERAL MASTER
SHALL BE BY EXCEPTIONS AS PROVIDED IN RULE 12.490(f), FLA. FAM.
L. R. P. A RECORD, WHICH INCLUDES A TRANSCRIPT OF PROCEEDINGS, MAY
BE REQUIRED TO SUPPORT THE EXCEPTIONS.
(3) The order of referral shall state with specificity the matter
or matters being referred and the name of the general master to
whom the matter is referred. The order of referral also shall state
whether electronic recording or a court reporter is provided by
the court, or whether a court reporter, if desired, must be provided
by the litigants.
(4) When a reference is made to a general master, any party or the
general master may set the action for hearing.
(c) General Powers and Duties. Every general master shall
perform all of the duties that pertain to the office according to
the practice in chancery and rules of court and under the direction
of the court except those duties related to domestic and repeat
violence. A general master shall be empowered to administer oaths
and conduct hearings, which may include the taking of evidence.
All grounds for disqualification of a judge shall apply to general
masters.
(d) Hearings.
(1) The general master shall assign a time and place for proceedings
as soon as reasonably possible after the reference is made and give
notice to each of the parties either directly or by directing counsel
to file and serve a notice of hearing. If any party fails to appear,
the general master may proceed ex parte or may adjourn the proceeding
to a future day, giving notice to the absent party of the adjournment.
The general master shall proceed with reasonable diligence in every
reference and with the least delay practicable. Any party may apply
to the court for an order to the general master to speed the proceedings
and to make the report and to certify to the court the reason for
any delay.
(2) The general master shall take testimony and establish a record
which may be by electronic means as provided by Florida Rule of
Judicial Administration 2.070(d) or by a court reporter. The parties
may not waive this requirement.
(3) The general master shall have authority to examine under oath
the parties and all witnesses upon all matters contained in the
reference to require production of all books, papers, writings,
vouchers, and other documents applicable to it, and to examine on
oath orally all witnesses produced by the parties. The general master
may take all actions concerning evidence that can be taken by the
circuit court and in the same manner. The general master shall have
the same powers as a circuit judge to utilize communications equipment
as defined and regulated by Florida Rule of Judicial Administration
2.071.
(4) The notice or order setting the cause for hearing shall be in
substantial conformity with Family Law Form 12.920(b) and shall
contain the following language in bold type:
SHOULD YOU WISH TO SEEK REVIEW OF THE REPORT AND RECOMMENDATION
MADE BY THE GENERAL MASTER, YOU MUST FILE EXCEPTIONS IN ACCORDANCE
WITH RULE 12.490(f), FLA. FAM. L. R. P. YOU WILL BE REQUIRED TO
PROVIDE THE COURT WITH A RECORD SUFFICIENT TO SUPPORT YOUR EXCEPTIONS
OR YOUR EXCEPTIONS WILL BE DENIED. A RECORD ORDINARILY INCLUDES
A WRITTEN TRANSCRIPT OF ALL RELEVANT PROCEEDINGS. THE PERSON SEEKING
REVIEW MUST HAVE THE TRANSCRIPT PREPARED IF NECESSARY FOR THE COURT'S
REVIEW.
(5) The notice or order setting a matter for hearing shall state
whether electronic recording or a court reporter is provided by
the court. If the court provides electronic recording, the notice
also shall state that any party may provide a court reporter at
that party's expense.
(e) General Master's Report. The general master shall file
a report that includes findings of fact and conclusions of law,
together with recommendations. If a court reporter was present,
the report shall contain the name and address of the reporter.
(f) Filing Report; Notice; Exceptions. The general master
shall file the report and recommendations and serve copies on all
parties. The parties may serve exceptions to the report within 10
days from the time it is served on them. Any party may file cross-exceptions
within 5 days from the service of the exceptions, provided, however,
that the filing of cross-exceptions shall not delay the hearing
on the exceptions unless good cause is shown. If no exceptions are
filed within that period, the court shall take appropriate action
on the report. If exceptions are filed, they shall be heard on reasonable
notice by either party or the court.
(g) Record. For the purpose of the hearing on exceptions,
a record, substantially in conformity with this rule, shall be provided
to the court by the party seeking review if necessary for the court's
review.
(1) The record shall consist of the court file, including the transcript
of the relevant proceedings before the general master and all depositions
and evidence presented to the general master.
(2) The transcript of all relevant proceedings, if any, shall be
delivered to the judge and provided to all other parties not less
than 48 hours before the hearing on exceptions. If less than a full
transcript of the proceedings taken before the general master is
ordered prepared by the excepting party, that party shall promptly
file a notice setting forth the portions of the transcript that
have been ordered. The responding parties shall be permitted to
designate any additional portions of the transcript necessary to
the adjudication of the issues raised in the exceptions or cross-exceptions.
(3) The cost of the original and all copies of the transcript of
the proceedings shall be borne initially by the party seeking review,
subject to appropriate assessment of suit monies. Should any portion
of the transcript be required as a result of a designation filed
by the responding party, the party making the designation shall
bear the initial cost of the additional transcript.
Commentary
1995 Adoption. This rule is a modification of Florida Rule of Civil
Procedure 1.490. That rule governed the appointment of both general
and special masters. The appointment of special masters is now governed
by Florida Family Law Rule of Procedure 12.492. This rule is intended
to clarify procedures that were required under rule 1.490, and it
creates additional procedures. The use of general masters should
be implemented only when such use will reduce costs and expedite
cases in accordance with Dralus v. Dralus, 627 So. 2d 505 (Fla.
2d DCA 1993), Wrona v. Wrona, 592 So. 2d 694 (Fla. 2d DCA 1991),
and Katz v. Katz, 505 So. 2d 25 (Fla. 4th DCA 1987).
RULE 12.491. CHILD SUPPORT ENFORCEMENT
(a) Limited Application. This rule shall be effective only
when specifically invoked by administrative order of the chief justice
for use in a particular county or circuit.
(b) Scope. This rule shall apply to proceedings for
(1) the establishment, enforcement, or modification of child support,
or
(2) the enforcement of any support order for the custodial parent
in conjunction with an ongoing child support or child support arrearage
order, when a party seeking support is receiving services pursuant
to Title IV-D of the Social Security Act (42 U.S.C. §§ 651 et seq.)
and to non-Title IV-D proceedings upon administrative order of the
chief justice.
(c) Support Enforcement Hearing Officers. The chief judge of each
judicial circuit shall appoint such number of support enforcement
hearing officers for the circuit or any county within the circuit
as are necessary to expeditiously perform the duties prescribed
by this rule. A hearing officer shall be a member of The Florida
Bar unless waived by the chief justice and shall serve at the pleasure
of the chief judge and a majority of the circuit judges in the circuit.
(d) Referral. Upon the filing of a cause of action or other
proceeding for the establishment, enforcement, or modification of
support to which this rule applies, the court or clerk of the circuit
court shall refer such proceedings to a support enforcement hearing
officer, pursuant to procedures to be established by administrative
order of the chief judge.
(e) General Powers and Duties. The support enforcement hearing
officer shall be empowered to issue process, administer oaths, require
the production of documents, and conduct hearings for the purpose
of taking evidence. A support enforcement hearing officer does not
have the authority to hear contested paternity cases. Upon the receipt
of a support proceeding, the support enforcement hearing officer
shall:
(1) assign a time and place for an appropriate hearing and give
notice to each of the parties as may be required by law;
(2) take testimony and establish a record, which record may be by
electronic means as provided by Florida Rule of Judicial Administration
2.070(d);
(3) accept voluntary acknowledgment of paternity and support liability
and stipulated agreements setting the amount of support to be paid;
and
(4) evaluate the evidence and promptly make a recommended order
to the court. Such order shall set forth findings of fact.
(f) Entry of Order and Relief from Order. Upon receipt of
a recommended order, the court shall review the recommended order
and shall enter an order promptly unless good cause appears to amend
the order, conduct further proceedings, or refer the matter back
to the hearing officer to conduct further proceedings. Any party
affected by the order may move to vacate the order by filing a motion
to vacate within 10 days from the date of entry. Any party may file
a cross-motion to vacate within 5 days of service of a motion to
vacate, provided, however, that the filing of a cross-motion to
vacate shall not delay the hearing on the motion to vacate unless
good cause is shown. A motion to vacate the order shall be heard
within 10 days after the movant applies for hearing on the motion.
(g) Modification of Order. Any party affected by the order
may move to modify the order at any time.
(h) Record. For the purpose of hearing on a motion to vacate,
a record, substantially in conformity with this rule, shall be provided
to the court by the party seeking review.
(1) The record shall consist of the court file, including the transcript
of the proceedings before the hearing officer, if filed, and all
depositions and evidence presented to the hearing officer.
(2) The transcript of all relevant proceedings shall be delivered
to the judge and provided to opposing counsel not less than 48 hours
before the hearing on the motion to vacate. If less than a full
transcript of the proceedings taken before the hearing officer is
ordered prepared by the moving party, that party shall promptly
file a notice setting forth the portions of the transcript that
have been ordered. The responding party shall be permitted to designate
any additional portions of the transcript necessary to the adjudication
of the issues raised in the motion to vacate or cross-motion to
vacate.
(3) The cost of the original and all copies of the transcript of
the proceedings shall be borne initially by the party seeking review,
subject to appropriate assessment of suit monies. Should any portion
of the transcript be required as a result of a designation filed
by the responding party, the party making the designation shall
bear the initial cost of the additional transcript.
Committee Note
1998 Amendment. This rule shall not apply to proceedings to establish
or modify alimony.
Commentary
1995 Adoption. Previously, this rule was contained in Florida
Rule of Civil Procedure 1.491. The new rule is substantially the
same as previous rule 1.491, with the following additions.
It is intended that any administrative order issued by the chief
justice of the Florida Supreme Court under rule 1.491(a) shall remain
in full force and effect as though such order was rendered under
this rule until changed by order of that same court.
Subdivision (e) now makes clear that contested paternity cases are
not to be heard by support enforcement hearing officers.
Subdivision (h) has been added to provide requirements for a record.
The following notes and commentary have been carried forward from
rule 1.491.
1988 Adoption. Title: The terminology "hearing officer" is
used rather than "master" to avoid confusion or conflict with rule
1.490.
Subdivision (a): The rule is intended as a fall back mechanism to
be used by the chief justice as the need may arise.
Subdivision (b): The expedited process provisions of the applicable
federal regulations apply only to matters which fall within the
purview of Title IV-D. The committee recognizes, however, that the
use of hearing officers could provide a useful case flow management
tool in non-Title IV-D support proceedings.
It is contemplated that a circuit could make application to the
chief justice for expansion of the scope of the rule upon a showing
of necessity and good cause. It is the position of the representative
of the Family Law Section of The Florida Bar that reference of non-Title
IV-D proceedings should require the consent of the parties as is
required by rule 1.490(c).
Subdivision (c): It is the position of the committee that hearing
officers should be members of the Bar in that jurisdictional and
other legal issues are likely to arise in proceedings of this nature.
The waiver provision is directed to small counties in which it may
be difficult or impossible to find a lawyer willing to serve and
to such other special circumstances as may be determined by the
chief justice.
Subdivision (d): This paragraph recognizes that the mechanics of
reference and operation of a program are best determined at the
local level.
Subdivision (e): This paragraph is intended to empower the hearing
officer to fully carry out his or her responsibilities without becoming
overly complicated. The authority to enter defaults which is referred
to in the federal regulations is omitted, the committee feeling
that the subject matter is fully and adequately covered by rule
1.500.
The authority to accept voluntary acknowledgments of paternity is
included at the request of the Department of Health and Rehabilitative
Services. Findings of fact are included in the recommended order
to provide the judge to whom the order is referred basic information
relating to the subject matter.
Subdivision (f): Expedited process is intended to eliminate or minimize
delays which are perceived to exist in the normal processing of
cases. This paragraph is intended to require the prompt entry of
an order and to guarantee due process to the obligee.
General Note: This proposed rule, in substantially the same form,
was circulated to each of the chief judges for comment. Five responses
were received. Two responding endorsed the procedure, and 3 responding
felt that any rule of this kind would be inappropriate. The committee
did not address the question of funding, which included not only
salaries of hearing officers and support personnel, but also capital
outlay for furniture, fixtures, equipment and space, and normal
operating costs. The committee recognizes that the operational costs
of such programs may be substantial and recommends that this matter
be addressed by an appropriate body.
RULE 12.492 SPECIAL MASTERS
(a) Special Masters. The court may appoint members of The
Florida Bar as special masters for any particular service required
by the court in a family law matter other than those involving domestic
and repeat violence. The special masters shall be governed by all
the provisions of law and rules relating to general masters except
as otherwise provided by this rule. Additionally, they shall not
be required to make oath or give bond unless specifically required
by the order appointing them. Upon a showing that the appointment
is advisable, a person other than a member of The Florida Bar may
be appointed.
(b) Reference. No reference shall be to a special master
without the express prior consent of the parties, except that the
court upon good cause shown and without consent of the parties may
appoint an attorney as a special master to preside over depositions
and rule upon objections.
(c) General Powers and Duties. Every special master shall
perform all of the duties that pertain to the office according to
the practice in chancery and rules of court and under the direction
of the court. Hearings before any special master shall be held in
the county where the action is pending, but hearings may be held
at any place by order of the court within or without the state to
meet the convenience of the witnesses or the parties. All grounds
for disqualification of a judge shall apply to special masters.
(d) Bond. When not otherwise provided by law, the court may
require special masters who are appointed to dispose of real or
personal property to give bond and surety conditioned for the proper
payment of all moneys that may come into their hands and for the
due performance of their duties as the court may direct. The bond
shall be made payable to the State of Florida and shall be for the
benefit of all persons aggrieved by any act of the special master.
(e) Hearings. When a reference is made to a special master,
any party or the special master may set the action for hearing.
The special master shall assign a time and place for proceedings
as soon as reasonably possible after the reference is made and give
notice to each of the parties either directly or by requiring counsel
to file and serve a notice of hearing. If any party fails to appear,
the special master may proceed ex parte or may adjourn the proceeding
to a future day, giving notice to the absent party of the adjournment.
The special master shall proceed with reasonable diligence in every
reference and with the least delay practicable. Any party may apply
to the court for an order to the special master to speed the proceedings
and to make the report and to certify to the court the reason for
any delay.
Unless otherwise ordered by the court, or agreed to by all parties,
all parties shall equally share the cost of the presence of a court
reporter at a special master's proceedings. If all parties waive
the presence of a court reporter, they must do so in writing. The
special master shall have authority to examine the parties and all
witnesses under oath upon all matters contained in the reference
and to require production of all books, papers, writings, vouchers,
and other documents applicable to it. The special master shall admit
evidence by deposition or that is otherwise admissible in court.
The special master may take all actions concerning evidence that
can be taken by the court and in the same manner. All parties accounting
before a special master shall bring in their accounts in the form
of accounts payable and receivable, and any other parties who are
not satisfied with the account may examine the accounting party
orally or by interrogatories or deposition as the special master
directs. All depositions and documents that have been taken or used
previously in the action may be used before the special master.
(f) Special Master's Report. The special master shall file
a report that includes findings of fact and conclusions of law,
together with recommendations. In the report made by the special
master no part of any statement of facts, account, charge, deposition,
examination, or answer used before the special master need be recited.
The matters shall be identified to inform the court what items were
used. The report shall include the name and address of the court
reporter present, if any.
(g) Filing Report; Notice; Exceptions. The special master
shall file the report and recommendations and serve copies on the
parties. The parties may serve exceptions to the report within 10
days from the time it is served on them. If no exceptions are filed
within that period, the court shall take appropriate action on the
report. Any party may file cross-exceptions within 5 days from the
service of the exceptions, provided, however, that the filing of
cross-exceptions shall not delay the hearing on the exceptions unless
good cause is shown. If exceptions are filed, they shall be heard
on reasonable notice by either party. The party seeking to have
exceptions heard shall be responsible for the preparation of the
transcript of proceedings before the special master.
(h) Expenses of Special Master. The costs of a special master
may be assessed as any other suit money in family proceedings and
all or part of it may be ordered prepaid by order of the court.
Commentary
1995 Adoption. Originally, both general and special masters were
governed under Florida Rule of Civil Procedure 1.490. General and
special masters are now governed under Florida Family Law Rules
of Procedure 12.490 and 12.492, respectively. The requirements for
appointing special masters are essentially the same as under the
previous rule; but this rule eliminates the need for consent for
the court to appoint an attorney/special master to preside over
depositions and rule on objections. It also provides for the assessment
of suit monies and allows for the filing of cross-exceptions.
RULE 12.500. DEFAULTS AND FINAL JUDGMENTS
THEREON
Defaults and final judgments thereon shall be governed by Florida
Rule of Civil Procedure 1.500.
RULE 12.510. SUMMARY JUDGMENT
Summary judgment shall be governed by Florida Rule of Civil Procedure
1.510.
RULE 12.520. VIEW
Upon motion of either party or on the court's own motion, the trier
of fact may view the premises or place in question or any property,
matter, or thing relating to the controversy between the parties
when it appears that view is necessary to a just decision.
Commentary
1995 Adoption. This rule replaces Florida Rule of Civil Procedure
1.520 and eliminates the advancement of costs imposed by rule 1.520.
RULE 12.530. MOTIONS FOR NEW TRIAL AND
REHEARING; AMENDMENTS OF JUDGMENTS
Motions for new trial and rehearing and amendments of judgments
shall be governed by Florida Rule of Civil Procedure
1.530.
RULE 12.540. RELIEF FROM JUDGMENT, DECREES,
OR ORDERS
Florida Rule of Civil Procedure 1.540 shall govern general provisions
concerning relief from judgment, decrees, or orders, except that
there shall be no time limit for motions based on fraudulent financial
affidavits in marital or paternity cases.
Commentary
1995 Adoption. Under this provision, Florida Rule of Civil Procedure
1.540 applies to all family law issues involving relief from judgment,
decrees, or orders, except that there shall be no time limit for
motions filed under rule 1.540(b) based on fraudulent financial
affidavits in marital or paternity cases. Rule 1.540 was expanded
to include marital cases through the rule making procedure subsequent
to the Florida Supreme Court's decision in DeClaire v. Yohanan,
453 So. 2d 375 (Fla. 1984).
RULE 12.550. EXECUTIONS AND FINAL PROCESS
Executions and final process shall be governed by Florida Rule of
Civil Procedure 1.550.
RULE 12.560. DISCOVERY IN AID OF EXECUTION
Discovery in aid of execution shall be governed by Florida Rule
of Civil Procedure 1.560.
RULE 12.570. ENFORCEMENT OF JUDGMENTS
Enforcement of judgments shall be governed by Florida Rule of Civil
Procedure 1.570. Money judgments, as governed by rule 1.570(a) shall
include, but not be limited to, judgments for alimony, child support,
attorneys' fees, suit money, and costs, and equitable distribution.
Commentary
1995 Adoption. Nothing in this rule or Florida Rule of Civil Procedure
1.570 should be read to preclude the use of other remedies to enforce
judgments.
RULE 12.580. WRIT OF POSSESSION
Writs of possession shall be governed by Florida Rule of Civil Procedure
1.580.
RULE 12.590. PROCESS IN BEHALF OF AND
AGAINST PERSONS NOT PARTIES
Process in behalf of and against persons not parties shall be governed
by Florida Rule of Civil Procedure 1.590.
RULE 12.600. DEPOSITS IN COURT
Deposits in court shall be governed by Florida Rule of Civil Procedure
1.600, with the following addition. The party depositing money or
depositing the thing capable of delivery shall pay any fee imposed
by the clerk of the court, unless the court orders otherwise.
Commentary
1995 Adoption. The addition to Florida Rule of Civil Procedure 1.600
included in this rule is intended to clarify responsibility for
the payment of clerk's fees.
RULE 12.610 INJUNCTIONS FOR DOMESTIC
AND REPEAT VIOLENCE
(a) Application. This rule shall apply only to temporary
and permanent injunctions for protection against domestic violence
and temporary and permanent injunctions for protection against repeat
violence. All other injunctive relief sought in cases to which the
Family Law Rules apply shall be governed by Florida Rule of Civil
Procedure 1.610.
(b) Petitions.
(1) Requirements for Use.
(A) Domestic Violence. Any person may file a petition for
an injunction for protection against domestic violence if they certify
under oath that
(i) the party filing the injunction and the party against whom the
injunction is sought are spouses, former spouses, persons related
by blood or marriage, persons who are presently residing together
as if a family or who have resided together in the past as if a
family, or persons who have a child in common regardless of whether
they have been married or have resided together at any time;
(ii) the party filing the petition was the victim of, or has reasonable
cause to believe he or she is in imminent danger of becoming the
victim of an assault, aggravated assault, battery, aggravated battery,
sexual assault, sexual battery, stalking, aggravated stalking, kidnapping,
false imprisonment, or any criminal offense resulting in physical
injury or death perpetrated by the party against whom the injunction
is sought; and
(iii) the specific facts and circumstances upon the basis of which
relief is sought are true.
(B) Repeat Violence. Any person may file a petition for an injunction
for protection against repeat violence if they certify under oath
that
(i) two incidents of violence, defined as any assault, battery,
sexual battery or stalking, one of which must have occurred within
6 months of the filing of the petition, have been committed by the
person against whom the injunction is sought against the petitioner
or the petitioner's immediate family member; and
(ii) the specific facts and circumstances upon the basis of which
relief is sought are true.
(2) Service of Petitions.
(A) Domestic Violence. Personal service by a law enforcement
agency is required. The clerk of the court shall furnish a copy
of the petition for an injunction for protection against domestic
violence, financial affidavit (if support is sought), Uniform Child
Custody Jurisdiction Act affidavit (if custody is sought), temporary
injunction (if one has been entered), and notice of hearing to the
appropriate sheriff or law enforcement agency of the county where
the respondent resides or can be found for expeditious service of
process.
(B) Repeat Violence. Personal service by a law enforcement
agency is required. The clerk of the court shall furnish a copy
of the petition for an injunction for protection against repeat
violence, temporary injunction (if one has been entered), and notice
of hearing to the appropriate sheriff or law enforcement agency
of the county where the respondent resides or can be found for expeditious
service of process.
(C) Additional Documents. Service of pleadings in cases of
domestic or repeat violence other than petitions, supplemental petitions,
and orders granting injunctions shall be governed by rule 12.080,
except that service of a motion to modify or vacate an injunction
should be by notice that is reasonably calculated to apprise the
nonmoving party of the pendency of the proceedings.
(3) Consideration by Court. Upon the filing of a petition,
the court shall set a hearing to be held at the earliest possible
time. A denial of a petition for an ex parte injunction shall be
by written order noting the legal grounds for denial. When the only
ground for denial is no appearance of an immediate and present danger
of domestic violence, the court shall set a full hearing on the
petition for injunction with notice at the earliest possible time.
Nothing herein affects a petitioner's right to promptly amend any
petition, or otherwise be heard in person on any petition consistent
with these rules.
(4) Forms.
(A) Provision of Forms. The clerk of the court or family
or domestic/repeat violence intake personnel shall provide simplified
forms, including instructions for completion, for any person whose
circumstances meet the requirements of this rule and shall assist
the petitioner in obtaining an injunction for protection against
domestic or repeat violence as provided by law.
(B) Confidential Filing of Address. A petitioner's address
may be furnished to the court in a confidential filing separate
from a petition or other form if, for safety reasons, a petitioner
believes that the address should be concealed. The ultimate determination
of a need for confidentiality must be made by the court as provided
in Florida Rule of Judicial Administration 2.051.
(c) Orders of Injunction.
(1) Consideration by Court.
(A) Temporary Injunction. For the injunction for protection
to be issued ex parte, it must appear to the court that an immediate
and present danger of domestic or repeat violence exists. In an
ex parte hearing for the purpose of obtaining an ex parte temporary
injunction, the court may limit the evidence to the verified pleadings
or affidavits or may receive additional testimony under oath if
necessary for a determination of whether an immediate and present
danger of domestic or repeat violence exists. If the respondent
appears at the hearing or has received reasonable notice of the
hearing, the court may hold a hearing on the petition.
(B) Permanent Injunction. A full evidentiary hearing shall
be conducted.
(2) Issuing of Injunction.
(A) Standardized Forms. The temporary and permanent injunction
forms in these rules for repeat and domestic violence injunctions
shall be the forms used in the issuance of injunctions under chapters
741 and 784, Florida Statutes. Additional provisions, not inconsistent
with the standardized portions of those forms, may be added to the
special provisions section of the temporary and permanent injunction
forms on the written approval of the chief judge of the circuit.
Copies of such additional provisions shall be sent to the Chief
Justice, the chair of the Family Law Rules Committee of The Florida
Bar, the chair of the Family Courts Steering Committee, and the
chair of The Governor's Task Force on Domestic and Sexual Violence.
(B) Bond No bond shall be required by the court for the entry of
an injunction for protection against domestic or repeat violence.
The clerk of the court shall provide the parties with sufficient
certified copies of the order of injunction for service.
(3) Service of Injunctions.
(A) Temporary Injunction. A temporary injunction for protection
against domestic or repeat violence must be personally served. When
the respondent has been served previously with the temporary injunction
and has failed to appear at the initial hearing on the temporary
injunction, any subsequent pleadings seeking an extension of time
may be served on the respondent by the clerk of the court by certified
mail in lieu of personal service by a law enforcement officer. If
the temporary injunction was issued after a hearing because the
respondent was present at the hearing or had reasonable notice of
the hearing, the injunction may be served in the manner provided
for a permanent injunction.
(B) Permanent Injunction.
(i) Party Present at Hearing. The parties may acknowledge
receipt of the permanent injunction for protection against domestic
or repeat violence in writing on the face of the original order.
If a party is present at the hearing and that party fails or refuses
to acknowledge the receipt of a certified copy of the injunction,
the clerk shall cause the order to be served by mailing certified
copies of the injunction to the parties who were present at hearing
at the last known address of each party. Service by mail is complete
upon mailing. When an order is served pursuant to this subdivision,
the clerk shall prepare a written certification to be placed in
the court file specifying the time, date, and method of service
and within 24 hours shall forward a copy of the injunction and the
clerk's affidavit of service to the sheriff with jurisdiction over
the residence of the petitioner. This procedure applies to service
of orders to modify or vacate injunctions for protection against
domestic or repeat violence.
(ii) Party not Present at Hearing. Within 24 hours after
the court issues, continues, modifies, or vacates an injunction
for protection against domestic or repeat violence, the clerk shall
forward a copy of the injunction to the sheriff with jurisdiction
over the residence of the petitioner for service.
(4) Duration.
(A) Temporary Injunction. Any temporary injunction shall
be effective for a fixed period not to exceed 15 days. A full hearing
shall be set for a date no later than the date when the temporary
injunction ceases to be effective. The court may grant a continuance
of the temporary injunction and of the full hearing for good cause
shown by any party, or upon its own motion for good cause, including
failure to obtain service.
(B) Permanent Injunction. Any relief granted by an injunction
for protection against domestic or repeat violence shall be granted
for a fixed period or until further order of court. Such relief
may be granted in addition to other civil and criminal remedies.
Upon petition of the victim, the court may extend the injunction
for successive periods or until further order of court. Broad discretion
resides with the court to grant an extension after considering the
circumstances. No specific allegations are required.
(5) Enforcement. The court may enforce violations of an injunction
for protection against domestic or repeat violence in civil contempt
proceedings, which are governed by rule 12.570 or in criminal contempt
proceedings, which are governed by Florida Rule of Criminal Procedure
3.840, or, if the violation meets the statutory criteria, it may
be prosecuted as a crime under Florida Statutes.
(6) Motion to Modify or Vacate Injunction. The petitioner
or respondent may move the court to modify or vacate an injunction
at any time. Service of a motion to modify or vacate injunctions
shall be governed by subdivision 12.610(b)(2) of this rule. However,
for service of a motion to modify to be sufficient if a party is
not represented by an attorney, service must be in accord with rule
12.070, or in the alternative, there must be filed in the record
proof of receipt of this motion by the nonmoving party personally.
(7) Forms. The clerk of the court or family or domestic/repeat
violence intake personnel shall provide simplified forms including
instructions for completion, for the persons whose circumstances
meet the requirements of this rule and shall assist in the preparation
of the affidavit in support of the violation of an order of injunction
for protection against domestic or repeat violence.
Commentary
1995 Adoption. A cause of action for an injunction for protection
against domestic violence and repeat violence has been created by
section 741.30, Florida Statutes (Supp. 1994) (modified by chapter
95-195, Laws of Florida), and section 784.046, Florida Statutes
(Supp. 1994), respectively. This rule implements those provisions
and is intended to be consistent with the procedures set out in
those provisions except as indicated in this commentary. To the
extent a domestic or repeat violence matter becomes criminal or
is to be enforced by direct or indirect criminal contempt, the appropriate
Florida Rules of Criminal Procedure will apply.
The facts and circumstances to be alleged under subdivision 12.610(b)(1)(A)
include those set forth in Florida Family Law Form 12.980(b). An
injunction for protection against domestic or repeat violence may
be sought whether or not any other cause of action is currently
pending between the parties. However, the pendency of any such cause
of action must be alleged in the petition. The relief the court
may grant in a temporary or permanent injunction against domestic
violence is set forth in section 741.30(6).
The facts and circumstances to be alleged under subdivision (b)(1)(B)
include those set forth in Florida Family Law Form 12.980(d). The
relief the court may grant in a temporary or permanent injunction
against repeat violence is set forth in section 784.046(7), Florida
Statutes.
Subdivision (b)(4) expands sections 741.30(2)(c)1 and (2)(c)2, Florida
Statutes, to provide that the responsibility to assist the petitioner
may be assigned not only to the clerk of court but also to the appropriate
intake unit of the court. Family Law Form 12.980(b) provides the
form for a petition for injunction against domestic violence. If
the custody of a child is at issue, a Uniform Child Custody Jurisdiction
Act affidavit must be provided and completed in conformity with
Family Law Form 12.901(f). If alimony or child support is sought
a Financial Affidavit must be provided and completed in conformity
with Family Law Form 12.901(d) or 12.901(e).
Subdivision (c)(1)(A) expands chapter 95-195, Laws of Florida, and
section 784.046(6)(a), Florida Statutes, to make the limitation
of evidence presented at an ex parte hearing permissive rather than
mandatory given the due process concerns raised by the statutory
restrictions on the taking of evidence.
Unlike traditional injunctions, under subdivision (c)(2), no bond
will be required for the issuance of injunctions for protection
against domestic or repeat violence. This provision is consistent
with the statutes except that, unlike the statutes, it does not
set a precise number of copies to be provided for service.
Subdivision (c)(3)(A) makes the procedure for service of a temporary
order of injunction for protection against domestic violence and
repeat violence consistent. This is intended to replace the differing
requirements contained in sections 741.30(7)(b)3 and (7)(c)1 and
784.046(8)(a)1, Florida Statutes.
Subdivision (c)(3)(B) makes the procedure for service of a permanent
order of injunction for protection against domestic violence and
repeat violence consistent. This is intended to replace the differing
requirements contained in sections 741.30(7)(a)3 and (7)(c)1 and
784.046(8)(c)1, Florida Statutes, and to specifically clarify that
service of the permanent injunction by mail is only effective upon
a party who is present at the hearing which resulted in the issuance
of the injunction.
Subdivision (c)(4)(A) restates sections 741.30(5)(c) and 784.046(6)(c),
Florida Statutes, with some expansion. This subdivision allows the
court upon its own motion to extend the protection of the temporary
injunction for protection against domestic or repeat violence for
good cause shown, which shall include, but not be limited to, failure
to obtain service. This subdivision also makes the procedures in
cases of domestic and repeat violence identical, resolving the inconsistencies
in the statutes.
Subdivision (c)(4)(B) makes the procedures in cases of domestic
and repeat violence identical, resolving inconsistencies in the
statutes. As stated in section 741.30(1)(c), Florida Statutes, in
the event a subsequent cause of action is filed under chapter 61,
Florida Statutes, any orders entered therein shall take precedence
over any inconsistent provisions of an injunction for protection
against domestic violence which addresses matters governed by chapter
61, Florida Statutes.
Subdivision (c)(5) implements a number of statutes governing enforcement
of injunctions against domestic or repeat violence. It is intended
by these rules that procedures in cases of domestic and repeat violence
be identical to resolve inconsistencies in the statutes. As such,
the procedures set out in section 741.31(1), Florida Statutes, are
to be followed for violations of injunctions for protection of both
domestic and repeat violence. Pursuant to that statute, the petitioner
may contact the clerk of the court of the circuit court of the county
in which the violation is alleged to have occurred to obtain information
regarding enforcement.
Subdivision (c)(7) expands sections 741.30 (2)(c)1 and (2)(c)2,
Florida Statutes, to provide that the responsibility to assist a
petitioner may not only be assigned to the clerk of court but also
to the appropriate intake unit of the court. This subdivision makes
the procedures in cases of domestic and cases of repeat violence
identical to resolve inconsistencies in the statutes.
Committee Note
1997 Amendment. This change mandates use of the injunction forms
provided with these rules to give law enforcement a standardized
form to assist in enforcement of injunctions. In order to address
local concerns, circuits may add special provisions not inconsistent
with the mandatory portions.
RULE 12.611 CENTRAL GOVERNMENTAL DEPOSITORY
(a) Administrative Order. If the chief judge of the circuit by administrative
order authorizes the creation of a central governmental depository
for the circuit or county within the circuit to receive, record,
and disburse all support alimony or maintenance payments, as provided
in section 61.181, Florida Statutes (1983), the court may direct
that payment be made to the officer designated in the administrative
order.
(b) Payments to Public Officer.
(1) If the court so directs, the payments shall be made to the officer
designated.
(2) The officer shall keep complete and accurate accounts of all
payments received. Payments shall be made by cash, money order,
cashier's check, or certified check. The officer shall promptly
disburse the proceeds to the party entitled to receive them under
the judgment or order.
(3) Payment may be enforced by the party entitled to it or the court
may establish a system under which the officer issues a motion for
enforcement and a notice of hearing in the form approved by the
supreme court. The motion and notice shall be served on the defaulting
party in person or by mail. At the hearing the court shall enter
an appropriate order based on the testimony presented to it.
Commentary
1995 Adoption. This rule is a remnant of Florida Rule of Civil
Procedure 1.611, which contained several unrelated issues. Those
issues are now governed by separate rules for automatic disclosure,
simplified dissolution procedure, and this rule for central governmental
depository.
RULE 12.615 CIVIL CONTEMPT IN SUPPORT
MATTERS
(a) Applicability. This rule governs civil contempt proceedings
in support matters related to family law cases. The use of civil
contempt sanctions under this rule shall be limited to those used
to compel compliance with a court order or to compensate a movant
for losses sustained as a result of a contemnor's willful failure
to comply with a court order. Contempt sanctions intended to punish
an offender or to vindicate the authority of the court are criminal
in nature and are governed by Florida Rules of Criminal Procedure
3.830 and 3.840.
(b) Motion and Notice. Civil contempt may be initiated by
motion. No civil contempt may be imposed without notice to the alleged
contemnor and without providing the alleged contemnor with an opportunity
to be heard. The civil contempt motion and notice of hearing may
be served by mail provided notice by mail is reasonably calculated
to apprise the alleged contemnor of the pendency of the proceedings.
The notice must specify the time and place of the hearing and must
contain the following language: "FAILURE TO APPEAR AT THE HEARING
MAY RESULT IN THE COURT ISSUING A WRIT OF BODILY ATTACHMENT FOR
YOUR ARREST. IF YOU ARE ARRESTED, YOU MAY BE HELD IN JAIL UP TO
48 HOURS BEFORE A HEARING IS HELD. The motion must recite the essential
facts constituting the acts alleged to be contemptuous.
(c) Hearing. In any civil contempt hearing, after the court
makes an express finding that the alleged contemnor had notice of
the motion and hearing:
(1) the court shall determine whether the movant has established
that a prior order directing payment of support was entered and
that the alleged contemnor has failed to pay all or part of the
support set forth in the prior order; and
(2) if the court finds the movant has established all of the requirements
in subdivision 12.615(c)(1) of this rule, the court shall,
(A) if the alleged contemnor is present, determine whether the alleged
contemnor had the present ability to pay support and willfully failed
to pay such support, the court is to determine whether the failure
to pay such support is willful;
(B) if the alleged contemnor fails to appear, set a reasonable purge
amount based on the individual circumstances of the parties. The
court may issue a writ of bodily attachment and direct that, upon
execution of the writ of bodily attachment, the alleged contemnor
be brought before the court within 48 hours for a hearing on whether
the alleged contemnor has the present ability to pay support and,
if so, whether the failure to pay such support is willful.
(d) Order and Sanctions. After hearing the testimony and
evidence presented, the court shall enter a written order granting
or denying the motion for contempt.
(1) An order finding the alleged contemnor to be in contempt shall
contain a finding that a prior order of support was entered, that
the alleged contemnor has failed to pay part or all of the support
ordered, that the alleged contemnor hashad the present ability to
pay support, and that the alleged contemnor has willfully failed
to comply with the prior court order. The order shall contain a
recital of the facts on which these findings are based.
(2) If the court grants the motion for contempt, the court may impose
appropriate sanctions to obtain compliance with the order including
incarceration, attorneys' fees, suit money and costs, compensatory
or coercive fines, and any other coercive sanction or relief permitted
by law provided the order includes a purge provision as set forth
in subdivision 12.615(e) of this rule.
(e) Purge. If the court orders incarceration, a coercive
fine, or any other coercive sanction for failure to comply with
a prior support order, the court shall set conditions for purge
of the contempt, based on the contemnor's present ability to comply.
The court shall include in its order a separate affirmative finding
that the contemnor has the present ability to comply with the purge
and the factual basis for that finding. The court may grant the
contemnor a reasonable time to comply with the purge conditions.
If the court orders incarceration but defers incarceration for more
than 48 hours to allow the contemnor a reasonable time to comply
with the purge conditions, and the contemnor fails to comply within
the time provided, the movant shall file an affidavit of noncompliance
with the court. If payment is being made through the Central Governmental
Depository, a certificate from the depository shall be attached
to the affidavit. The court then may issue a writ of bodily attachment.
Upon incarceration, the contemnor must be brought immediately before
the court within 48 hours for a determination of whether the contemnor
continues to have the present ability to pay the purge.
(f) Review after Incarceration. Notwithstanding the provisions
of this rule, at any time after a contemnor is incarcerated, the
court on its own motion or motion of any party may review the contemnor's
present ability to comply with the purge condition and the duration
of incarceration and modify any prior orders.
(g) Other Relief. Where there is a failure to pay support
or to pay support on a timely basis but the failure is not willful,
nothing in this rule shall be construed as precluding the court
from granting such relief as may be appropriate under the circumstances.
Commentary
1998 Adoption. This rule is limited to civil contempt proceedings.
Should a court wish to impose sanctions for criminal contempt, the
court must refer to Florida Rules of Criminal Procedure 3.830 and
3.840 and must provide the alleged contemnor with all of the constitutional
due process protections afforded to criminal defendants. This rule
is created to assist the trial courts in ensuring that the due process
rights of alleged contemnors are protected. A court that adjudges
an individual to be in civil contempt must always afford the contemnor
the opportunity to purge the contempt
RULE 12.620. RECEIVERS
Receivers shall be governed by Florida Rule of Civil Procedure 1.620.
RULE 12.625. PROCEEDINGS AGAINST SURETY
ON JUDICIAL BONDS
Proceedings against sureties on judicial bonds shall be governed
by Florida Rule of Civil Procedure 1.625.
RULE 12.630. EXTRAORDINARY REMEDIES
Extraordinary remedies shall be governed by Florida Rule of Civil
Procedure 1.630.
RULE 12.740 FAMILY MEDIATION
(a) Applicability. This rule governs mediation of family
matters and related issues.
(b) Referral. Except as provided by law and this rule, all
contested family matters and issues may be referred to mediation.
Every effort shall be made to expedite mediation of family issues.
(c) Limitation on Referral to Mediation. Unless otherwise
agreed by the parties, family matters and issues may be referred
to a mediator or mediation program which charges a fee only after
the court has determined that the parties have the financial ability
to pay such a fee. This determination may be based upon the parties'
financial affidavits or other financial information available to
the court. When the mediator is compensated in whole or part by
the parties, the presiding judge may determine the reasonableness
of the fees charged by the mediator. In the absence of a written
agreement providing for the mediator's compensation, the mediator
shall be compensated at the hourly rate set by the presiding judge
in the referral order. When appropriate, the court shall apportion
mediation fees between the parties and shall state each party's
share in the order of referral. Parties may object to the rate of
the mediator's compensation within 15 days of the order of referral
by serving an objection on all other parties and the mediator.
(d) Appearances. Unless otherwise stipulated by the parties,
a party is deemed to appear at a family mediation convened pursuant
to this rule if the named party is physically present at the mediation
conference. In the discretion of the mediator and with the agreement
of the parties, family mediation may proceed in the absence of counsel
unless otherwise ordered by the court.
(e) Completion of Mediation. Mediation shall be completed
within 75 days of the first mediation conference unless otherwise
ordered by the court.
(f) Report on Mediation.
(1) If agreement is reached as to any matter or issue, including
legal or factual issues to be determined by the court, the agreement
shall be reduced to writing, signed by the parties and their counsel,
if any and if present, and submitted to the court unless the parties
agree otherwise. By stipulation of the parties, the agreement may
be electronically or stenographically recorded and made under oath
or affirmed. In such event, an appropriately signed transcript may
be filed with the court. If counsel for any party is not present
when the agreement is reached, the mediator shall cause to be mailed
a copy of the agreement to counsel within 5 days. Counsel shall
have 10 days from service of a copy of the agreement to serve a
written objection on the mediator, unrepresented parties, and counsel.
Absent a timely written objection, the agreement is presumed to
be approved by counsel and shall be filed with the court by the
mediator.
(2) After the agreement is filed, the court shall take action as
required by law. When court approval is not necessary, the agreement
shall become binding upon filing. When court approval is necessary,
the agreement shall become binding upon approval. In either event,
the agreement shall be made part of the final judgment or order
in the case.
(3) If the parties do not reach an agreement as to any matter as
a result of mediation, the mediator shall report the lack of an
agreement to the court without comment or recommendation. With the
consent of the parties, the mediator's report may also identify
any pending motions or outstanding legal issues, discovery process,
or other action by any party which, if resolved or completed, would
facilitate the possibility of a settlement.
Commentary
1995 Adoption. This rule is similar to former Florida Rule of
Civil Procedure 1.740. All provisions concerning the compensation
of the mediator have been incorporated into this rule so that all
mediator compensation provisions are contained in one rule. Additionally,
this rule clarifies language regarding the filing of transcripts,
the mediator's responsibility for mailing a copy of the agreement
to counsel, and counsel's filing of written objections to mediation
agreements.
RULE 12.741 MEDIATION RULES
(a) Discovery. Unless stipulated by the parties or ordered by
the court, the mediation process shall not suspend discovery.
(b) General Procedures.
(1) Interim or Emergency Relief. A party may apply to the
court for interim or emergency relief at any time. Mediation shall
continue while such a motion is pending absent a contrary order
of the court, or a decision of the mediator to adjourn pending disposition
of the motion. Time for completing mediation shall be tolled during
any periods when mediation is interrupted pending resolution of
such a motion.
(2) Sanctions for Failure to Appear. If a party fails to
appear at a duly noticed mediation conference without good cause,
the court upon motion shall impose sanctions, including an award
of mediator and attorneys' fees and other costs, against the party
failing to appear.
(3) Adjournments. The mediator may adjourn the mediation
conference at any time and may set times for reconvening the adjourned
conference. No further notification is required for parties present
at the adjourned conference.
(4) Counsel. Counsel shall be permitted to communicate privately
with their clients. The mediator shall at all times be in control
of the mediation and the procedures to be followed in the mediation.
(5) Communication with Parties. The mediator may meet and
consult privately with any party or parties or their counsel.
(6) Appointment of the Mediator.
(A) Within 10 days of the order of referral, the parties may agree
upon a stipulation with the court designating:
(i) a certified mediator; or
(ii) a mediator who does not meet the certification requirements
of these rules but who, in the opinion of the parties and upon review
by the presiding judge, is otherwise qualified by training or experience
to mediate all or some of the issues in the particular case.
(B) If the parties cannot agree upon a mediator within 10 days of
the order of referral, the plaintiff or petitioner shall so notify
the court within 10 days of the expiration of the period to agree
on a mediator, and the court shall appoint a certified mediator
selected by rotation or by such other procedures as may be adopted
by administrative order of the chief judge in the circuit in which
the action is pending.
(C) If a mediator agreed upon by the parties or appointed by a court
cannot serve, a substitute mediator can be agreed upon or appointed
in the same manner as the original mediator. A mediator shall not
mediate a case assigned to another mediator without the agreement
of the parties or approval of the court. A substitute mediator shall
have the same qualifications as the original mediator.
Commentary
1995 Adoption. This rule combines and replaces Florida Rules
of Civil Procedure 1.710, 1.720, and 1.730. The rule, as combined,
is substantially similar to those three previous rules, with the
following exceptions. This rule deletes subdivisions (a) and (b)
of rule 1.710 and subdivisions (b) and (c) of rule 1.730. This rule
compliments Florida Family Law Rule of Procedure 12.740 by providing
direction regarding various procedures to be followed in family
law mediation proceedings.
RULE 12.750 FAMILY SELF-HELP PROGRAMS
(a) Establishment of Programs.A chief judge, by administrative order,
may establish a self-help program to facilitate access to family
courts. The purpose of a self-help program is to assist self-represented
litigants, within the bounds of this rule, to achieve fair and efficient
resolution of their family law case. The purpose of a self-help
program is not to provide legal advice to self-represented litigants.
This rule applies only to programs established and operating under
the auspices of the court pursuant to this rule.
(b) Definitions.
(1) "Family law case" means any case in the circuit that is assigned
to the family law division.
(2) "Self-represented litigant" means any individual who seeks information
to file, pursue, or respond to a family law case without the assistance
of a lawyer authorized to practice before the court.
(3) "Self-help personnel" means lawyer and nonlawyer personnel in
a self-help program.
(4) "Self-help program" means a program established and operating
under the authority of this rule.
(5) "Approved form" means (A) Supreme Court approved forms or (B)
forms that have been approved in writing by the chief judge of a
circuit and that are not inconsistent with the Supreme Court approved
forms, copies of which are to be sent to the Chief Justice, the
chair of the Family Law Rules Committee of The Florida Bar, the
chair of the Family Law Section of The Florida Bar, and the chair
of the Family Court Steering Committee. Forms approved by a chief
judge may be used unless specifically rejected by the Supreme Court.
(c) Services Provided. Self-help personnel may:
(1) encourage self-represented litigants to obtain legal advice;
(2) provide information about available pro bono legal services,
low cost legal services, legal aid programs, and lawyer referral
services;
(3) provide information about available approved forms, without
providing advice or recommendation as to any specific course of
action;
(4) provide approved forms and approved instructions on how to complete
the forms;
(5) engage in limited oral communications to assist a person in
the completion of blanks on approved forms;
(6) record information provided by a self-represented litigant on
approved forms;
(7) provide, either orally or in writing, definitions of legal terminology
from widely accepted legal dictionaries or other dictionaries without
advising whether or not a particular definition is applicable to
the self-represented litigant's situation;
(8) provide, either orally or in writing, citations of statutes
and rules, without advising whether or not a particular statute
or rule is applicable to the self-represented litigant's situation;
(9) provide docketed case information;
(10) provide general information about court process, practice,
and procedure;
(11) provide information about mediation, required parenting courses,
and courses for children of divorcing parents;
(12) provide, either orally or in writing, information from local
rules or administrative orders;
(13) provide general information about local court operations;
(14) provide information about community services; and
(15) facilitate the setting of hearings.
(d) Limitations on Services. Self-help personnel shall not:
(1) provide legal advice or recommend a specific course of action
for a self-represented litigant;
(2) provide interpretation of legal terminology, statutes, rules,
orders, cases, or the constitution;
(3) provide information that must be kept confidential by statute,
rule, or case law;
(4) deny a litigant's access to the court;
(5) encourage or discourage litigation;
(6) record information on forms for a self-represented litigant,
except as otherwise provided by this rule;
(7) engage in oral communications other than those reasonably necessary
to elicit factual information to complete the blanks on forms except
as otherwise authorized by this rule;
(8) perform legal research for litigants;
(9) represent litigants in court; and
(10) lead litigants to believe that they are representing them as
lawyers in any capacity or induce the public to rely upon them for
legal advice.
(e) Unauthorized Practice of Law. The services listed in
subdivision (c), when performed by nonlawyer personnel in a self-help
program, shall not be the unauthorized practice of law.
(f) No Confidentiality. Notwithstanding ethics rules that
govern attorneys, certified legal interns, and other persons working
under the supervision of an attorney, information given by a self-represented
litigant to self-help personnel is not confidential or privileged.
(g) No Conflict. Notwithstanding ethics rules that govern
attorneys, certified legal interns, and other persons working under
the supervision of an attorney, there is no conflict of interest
in providing services to both parties.
(h) Notice of Limitation of Services Provided. Before receiving
the services of a self-help program, self-help personnel shall thoroughly
explain the "Notice of Limitation of Services Provided" disclaimer
below. Each self-represented litigant, after receiving an explanation
of the disclaimer, shall sign an acknowledgment that the disclaimer
has been explained to the self-represented litigant and that the
self-represented litigant understands the limitation of the services
provided. The self-help personnel shall sign the acknowledgment
certifying compliance with this requirement. The original shall
be filed by the self-help personnel in the court file and a copy
shall be provided to the self-represented litigant.
NOTICE OF LIMITATION OF SERVICES PROVIDED
THE PERSONNEL IN THIS SELF-HELP PROGRAM ARE NOT ACTING AS YOUR LAWYER
OR PROVIDING LEGAL ADVICE TO YOU .
SELF-HELP PERSONNEL ARE NOT ACTING ON BEHALF OF THE COURT OR ANY
JUDGE. THE PRESIDING JUDGE IN YOUR CASE MAY REQUIRE AMENDMENT OF
A FORM OR SUBSTITUTION OF A DIFFERENT FORM. THE JUDGE IS NOT REQUIRED
TO GRANT THE RELIEF REQUESTED IN A FORM.
THE PERSONNEL IN THIS SELF-HELP PROGRAM CANNOT TELL YOU WHAT YOUR
LEGAL RIGHTS OR REMEDIES ARE, REPRESENT YOU IN COURT, OR TELL YOU
HOW TO TESTIFY IN COURT.
SELF-HELP SERVICES ARE AVAILABLE TO ALL PERSONS WHO ARE OR WILL
BE PARTIES TO A FAMILY CASE.
THE INFORMATION THAT YOU GIVE TO AND RECEIVE FROM SELF-HELP PERSONNEL
IS NOT CONFIDENTIAL AND MAY BE SUBJECT TO DISCLOSURE AT A LATER
DATE. IF ANOTHER PERSON INVOLVED IN YOUR CASE SEEKS ASSISTANCE FROM
THIS SELF-HELP PROGRAM, THAT PERSON WILL BE GIVEN THE SAME TYPE
OF ASSISTANCE THAT YOU RECEIVE.
IN ALL CASES, IT IS BEST TO CONSULT WITH YOUR OWN ATTORNEY, ESPECIALLY
IF YOUR CASE PRESENTS SIGNIFICANT ISSUES REGARDING CHILDREN, CHILD
SUPPORT, ALIMONY, RETIREMENT OR PENSION BENEFITS, ASSETS, OR LIABILITIES.
I CAN READ ENGLISH.
I CANNOT READ ENGLISH. THIS NOTICE WAS READ TO ME BY
{NAME}_____________________ IN {LANGUAGE}_______________.
____________________________
SIGNATURE
AVISO DE LIMITACION DE SERVICIOS OFRECIDOS
EL PERSONAL DE ESTE PROGRAMA DE AYUDA PROPIA NO ESTA ACTUANDO COMO
SU ABOGADO NI LE ESTA DANDO CONSEJOS LEGALES.
ESTE PERSONAL NO REPRESENTA NI LA CORTE NI NINGUN JUEZ. EL JUEZ
ASIGNADO A SU CASO PUEDE REQUERIR UN CAMBIO DE ESTA FORMA O UNA
FORMA DIFERENTE. EL JUEZ NO ESTA OBLIGADO A CONCEDER LA REPARACION
QUE USTED PIDE EN ESTA FORMA.
EL PERSONAL DE ESTE PROGRAMA DE AYUDA PROPIA NO LE PUEDE DECIR CUALES
SON SUS DERECHOS NI SOLUCIONES LEGALES, NO PUEDE REPRESENTARLO EN
CORTE, NI DECIRLE COMO TESTIFICAR EN CORTE.
SERVICIOS DE AYUDA PROPIA ESTAN DISPONIBLES A TODAS LAS PERSONAS
QUE SON O SERAN PARTES DE UN CASO FAMILIAR.
LA INFORMACION QUE USTED DA Y RECIBE DE ESTE PERSONAL NO ES CONFIDENCIAL
Y PUEDE SER DESCUBIERTA MAS ADELANTE. SI OTRA PERSONA ENVUELTA EN
SU CASO PIDE AYUDA DE ESTE PROGRAMA, ELLOS RECIBIRAN EL MISMO TIPO
DE ASISTENCIA QUE USTED RECIBE.
EN TODOS LOS CASOS, ES MEJOR CONSULTAR CON SU PROPIO ABOGADO, ESPECIALMENTE
SI SU CASO TRATA DE TEMAS RESPECTO A NINOS, MANTENIMIENTO ECONOMICO
DE NINOS, MANUTENCION MATRIMONIAL, RETIRO O BENEFICIOS DE PENSION,
ACTIVOS U OBLIGACIONES.
YO PUEDO LEER ESPANOL.
YO NO PUEDO LEER ESPANOL. ESTE AVISO FUE LEIDO A MI POR
{NOMBRE} ________________________ EN {IDIOMA} _______________.
FIRMA
If information is provided by telephone, the notice of limitation
of services provided shall be heard by all callers prior to speaking
to self-help staff.
(i) Exemption. Self-help personnel are not required to complete
Florida Family Law Form12.900, Disclosure From Nonlawyer, as required
by rule 10-2.1, Rules Regulating The Florida Bar. The provisions
in rule 10-2.1, Rules Regulating The Florida Bar, which require
a nonlawyer to include the nonlawyer's name and identifying information
on a form if the nonlawyer assisted in the completion of a form,
are not applicable to self-help personnel unless the self-help personnel
recorded the information on the form as authorized by this rule.
(j) Availability of Services. Self-help programs are available
to all self-represented litigants in family law cases.
(k) Cost of Services. Self-help programs, as authorized by
statute, may require self-represented litigants to pay the cost
of services provided for by this rule, provided that the charge
for persons who are indigent is substantially reduced or waived.
(l) Records. All records made or received in connection with
the official business of a self-help program are judicial records
and access to such records shall be governed by rule 2.051, Florida
Rules of Judicial Administration.
(m) Domestic Violence Exclusion. Nothing in this rule shall
restrict services provided by the clerk of the court or family or
domestic/repeat violence intake personnel pursuant to rule 12.610.
Commentary
1998 Adoption. It should be emphasized that the personnel
in the self-help programs should not be providing legal advice to
self-represented litigants. Self-help personnel should not engage
in any activities that constitute the practice of law or inadvertently
create an attorney-client relationship. Self-help programs should
consistently encourage self-represented litigants to seek legal
advice from a licensed attorney. The provisions of this rule only
apply to programs established by the chief judge.
Subdivision (b). This rule applies only to assistance offered in
family law cases. The types of family law cases included in a family
law division may vary based on local rule and it is anticipated
that a local rule establishing a self-help program may also exclude
types of family law cases from the self-help program. Programs may
operate with lawyer personnel, nonlawyer personnel, or a combination
thereof.
Subdivision (c)(2). The self-help program is encouraged to cooperate
with the local bar to develop a workable system to provide this
information. The program may maintain information about members
of The Florida Bar who are willing to provide services to self-represented
litigants. The program may not show preference for a particular
service, program, or attorney.
Subdivision (c)(3). In order to avoid the practice of law, the self-help
personnel should not recommend a specific course of action.
Subdivision (c)(5). Self-help personnel should not suggest the specific
information to be included in the blanks on the forms. Oral communications
between the self-help personnel and the self-represented litigant
should be focused on the type of information the form is designed
to elicit.
Subdivision (c)(8). Self-help personnel should be familiar with
the court rules and the most commonly used statutory provisions.
Requests for information beyond these commonly used statutory provisions
would require legal research, which is prohibited by subdivision
(d)(8).
Subdivision (c)(9). Self-help personnel can have access to the court's
docket and can provide information from the docket to the self-represented
litigant.
Subdivision (f). Because an attorney-client relationship is not
formed, the information provided by a self-represented litigant
is not confidential or privileged.
Subdivision (g). Because an attorney-client relationship is not
formed, there is no conflict in providing the limited services authorized
under this rule to both parties.
Subdivision (h). It is intended that self-represented litigants
who receive services from a self-help program understand that they
are not receiving legal services. One purpose of the disclosure
is to prevent an attorney-client relationship from being formed.
In addition to the signed disclosure, it is recommended that each
program post the disclosure in a prominent place in the self-help
program. The written disclosure should be available and posted in
the languages that are in prevalent use in the county.
Subdivision (i). This provision is to clarify that nonlawyer personnel
are not required to use Florida Family Law Form 12.900 because the
information is included in the disclosure required by this rule.
Self-help personnel are required to include their name and identifying
information on any form on which they record information for a self-represented
litigant. Trial. If the court finds the action ready to be
set for trial, it shall enter an order setting the action for trial,
fixing a date for trial, and setting a pretrial conference, if necessary.
In the event a default has been entered, reasonable notice of not
less than 10 days shall be given unless otherwise required by law.
Trial shall be set within a reasonable time from the service of
the notice for trial. At the pretrial conference, the parties should
be prepared, consistent with Florida Family Law Rule of Procedure
12.200, to present any matter that will prepare the parties for
trial and that can expedite the resolution of the case. The trial
court may also direct the parties to reciprocally exchange and file
with the court all documents relative to the outcome of the case;
a list of all witnesses, all issues to be tried, and all undisposed
motions; an estimate of the time needed to try the case; and any
other information the court deems appropriate. This information
should be served and filed no later than 72 hours before the pretrial
conference or 30 days before the trial.
(b) Sanctions. The failure to comply with the requirements
of the order setting the action for trial shall subject the party
or attorney to appropriate court sanctions.
Commentary
1995 Adoption. This rule amends Florida Rule of Civil Procedure
1.440(c), Setting for Trial, and creates a procedure to facilitate
setting an action for trial. Proper pretrial compliance will foster
knowledgeable settlement discussion and expedite an orderly trial.
The rule also adds a provision for sanctions.
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