Tag: Motion for Summary Judgment

Motion for Summary Judgment Florida Divorce

Motion for Summary Judgment Florida Divorce

Florida Family Law Rule of Procedure 1.150 “Summary Judgment”, also known as Fla. Fam. Law. R. P. 12.510 is about drafting and filing a motion for summary judgment in a Florida divorce. Florida Family Law Rule of Procedure 1.150 Summary Judgment provides (in essence) that either party may ask the court to grant an end to your case. When a court grants summary judgment, it means the case will be decided based on the evidence available at that time (provided the facts are undisputed), meaning the case will essentially stop in its tracks. For example, if it is irrefutably proven that both parties earn the same income and that neither side has a need for alimony (they both have a surplus and no need for alimony) a party may wish to file a motion for summary judgment Florida divorce to seek the conclusion of the case without the need for trial. Call Jacobs Law Firm at 407-335-8113 to speak with an Orlando divorce attorney and Clermont divorce attorney to receive the help you need.

Did you know that Florida Family Law Rule of Procedure 1.150 Summary Judgment requires the movant (person asking for the court to grant SJ) to state in capital letters the following message:

A RESPONSE TO THE MOTION FOR JUDGMENT MUST BE MADE IN WRITING, FILED WITH THE COURT, AND SERVED ON THE OTHER PARTY NO LESS THAN TWENTY DAYS PRIOR TO THE HEARING DATE. YOUR RESPONSE MUST INCLUDE YOUR SUPPORTING FACTUAL POSITION. IF YOU FAIL TO RESPOND, THE COURT MAY ENTER ORDERS GRANTING THE SUMMARY JUDGMENT OR FINDING FACTS TO BE UNDISPUTED.

If this bold-lettered message is not properly provided, a judge can as a matter of law deny a motion for summary judgment in a Florida divorce or paternity case.

When can you ask for summary judgment? Subsection (b) of Fla. Fam. Law. R. P. 12.510 provides that you may ask the judge for summary judgment at any time after the expiration of 20 days from the start of the case or after service of a motion for summary judgment by the adverse party. Further, the person requesting this outcome must serve the motion at least 40 days before the time fixed for the hearing that will result from service of the motion itself.

Perhaps the best news for practitioners such as Attorney Jonathan Jacobs is that a motion for summary judgment Florida divorce allows him to make use of the records from the case. In the motion and at the subsequent hearing, you can cite to depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, and/or other materials and or other materials at the court’s discretion. The other side has to serve a response at least 20 days before the time fixed for the hearing. Call Jacobs Law Firm today at 407-335-8113.

Summary Judgment in Florida family law

Summary Judgment in Florida Family Law

Searching for information about summary judgment in Florida family law? A family lawyer and divorce attorney often litigates 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 layman’s terms? A genuine issue of material fact means that each side disagrees about an allegation or fact. For instance, the petitioner claims Respondent has been verbally abusive to the parties’ child, and the Respondent argues it never happened, and as such, the allegation is a fabrication. If there is 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. This may be different when there is a supplemental petition for modification. Jonathan Jacobs is a divorce attorney in Orlando and a family lawyer in 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. Remember that a motion to dismiss Florida family law is different than a motion for summary judgment.

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.