Searching for information about summary judgment in Florida family law? A family lawyer and divorce attorney often must litigate complex issues that require extensive research and the matching of unique facts to specialized laws. A seldom used aspect of a family lawyer’s proverbial toolkit is a Motion for Summary Judgment. Summary judgment in Florida family law is intended to determine with finality whether there is any “genuine issue of material fact” in controversy. What does this mean in laymen’s terms? A genuine issue of material fact means that each side disagrees about an allegation/fact. For instance, Petitioner claims Respondent has been verbally abusive to the parties’ child and Respondent argues it never happened and as such the allegation is a fabrication. Having a disagreement over a key fact, there is a genuine issue to be litigated and a case may not be appropriate for summary judgment at that time. Jonathan Jacobs is a divorce attorney Orlando and family lawyer Clermont Florida. Call 407-335-8113 today for a family law consultation.
Family Law Rule of Procedure 12.510 “Summary Judgment” is modeled after its sister Civil Rule of Procedure that sets the standard for summary judgment motions. Despite applying to family law, the Rule largely describes civil matters and, in many ways, leads only to inferences and loose assertions how the Rule may apply to a family law case. Hopefully this article will partially demystify the summary judgment in Florida family law Rule.
Summary Judgment Florida Family Law
Summary Judgment in Florida family law is rarely tested in court and historically has been litigated only in actions for modification of child support. If a motion for summary judgment is seldom made in family law, in what other situations may it be applicable? Here is one such factual predicate.
Petitioner files a Supplemental Petition for Modification of Timesharing, Parenting Plan and Child Support. The Respondent is pro se (self-represented) or is represented by counsel that is inexperienced in countering a Supplemental Petition. Respondent files a Motion to Dismiss which is denied or outright fails to file a Motion to Dismiss. Instead, Respondent answers the Petition for Modification and files a Counterpetition. The Petitioner’s facts do not support a modification of the parenting plan and the Respondent’s failure to properly litigate a Motion to Dismiss has unnecessarily caused the case to move to mediation and perhaps noticed for a full day of trial. The case never should have been allowed to progress on its absence of triable facts/merits. Once an Answer and/or a Counterpetition has been filed, a Motion to Dismiss is off the table procedurally. The Respondent is disempowered, unless he or she files a Motion for Summary Judgment in Florida family law. This is no simple matter as it is highly technical and rarely has been battle tested in family law court.
In our hypothetical Supplemental Petition, Petitioner’s main allegation is that the live-in girlfriend of the Respondent/Father was arrested for driving while intoxicated (DWI). Superficially, this seems like a provocative fact that will allow a Petitioner to modify a parenting plan. However, looking deeper into the situation, we find the girlfriend was alone in the car while the minor child was safe at home with the Father. No accident occurred, nobody was injured, and the girlfriend was given pre-trial diversion by the prosecutor. Now, what once appeared to be a scandalous fact in the favor of the Petitioner is really just a fact, and a fact that will not overcome the extraordinary burden of Florida Statute 61.13 defining a substantial change in circumstances as something that is substantial, material, and unanticipated at the time of the Final Judgment.
A Motion to Dismiss would likely have resolved with the case being removed. Now, having progressed due to the failure of due diligence and/or litigation strategy of/from the Respondent, all that remains in the arsenal of the Respondent and Respondent’s counsel is to file a Motion for Summary Judgment. Respondent must demonstrate to the Court the case cannot proceed on its merits and that no facts are in dispute. Summary judgment in Florida family law is a viable and powerful force in litigation when no other alternative remains.
Call Attorney Jonathan Jacobs if you need help dismissing or removing a Supplemental Petition for Modification that has been filed against you unfairly without sufficient grounds for a modification. Dial 407-335-8113 for your consultation about Summary judgment in Florida family law.