What Happens at a Florida Divorce Pretrial?

If you are in the middle of a divorce, you may feel a bit intimidated when your attorney mentions the words “pre-trial.” After all, as though your divorce were not stressful enough, a pre-trial can add yet another stressor into the mix. Your pre-trial hearing does not have to be a frightening experience, however, and the more you know and understand about the hearing, the more at ease you will be with it.

What is a Pre-Trial Hearing?

A pre-trial hearing is typically held when it becomes clear that you and your spouse are unable to settle the details of your divorce between the two of you. Florida courts will typically hold at least one pre-trial conference prior to your divorce trial. Essentially, a pre-trial hearing allows your attorney—and you—to weigh the risks of a trial versus a settlement. Once the facts are presented in a Florida pre-trial hearing, it will become much clearer whether or not a judge will be sympathetic to your specific issues. Pre-trial hearings are scheduled as the trial date grows near.

Your pre-trial hearing could be held in the judge’s chambers or office rather than a courtroom, although it could be held in a small courtroom. Consider the pre-trial hearing as the last chance for you and your spouse to determine your divorce issues on your own, rather than having a judge decide those issue for you—in ways neither of you may be happy with. Many divorces do settle at the pre-trial conference, or soon after, however if a settlement does not make sense in your particular situation, then you will want to continue on to the divorce trial.

One of the most important things you can do during this stressful time is accept the valuable guidance your Florida family law attorney offers. Your attorney will be a zealous advocate for your interests, no matter which option you choose, but will have the benefit of knowledge and experience to help you make the best decision for your future. Remember, you have the right to reach a divorce settlement up until the date of the trial, so try not to feel pressured to decide on issues you just are not sure about.

When Will the Pre-Trial Hearing Take Place?

A pre-trial hearing generally takes place close to the end of your divorce. During the process of your divorce, your attorney has been gathering information through discovery. Discovery might include interrogatories—a written list of questions by your attorney to your spouse’s attorney, and vice versa. These questions are answered under penalty of perjury, and, as your attorney will tell you, many times questions which seem rather innocent on their face are asked with a specific goal in mind. That goal is to see whether you answer the question the same way during the pre-trial and/or trial. In short, the goal is to “trip you up,” in order to make you look dishonest to the judge.

What Happens at a Pre-Trial Hearing?

The pre-trial judge will make a determination regarding contested issues which you and your spouse have been unable to agree on and is likely to place deadlines on any items which either side has not received, such as financials or other types of discovery. When the pre-trial begins, both sides will have a chance to present their “case,” as far as telling the judge what they want out of the divorce and why. Your attorney—as well as your spouse’s attorney—may have submitted discovery documents before the pretrial and could have submitted memos which thoroughly explains both positions. A pre-trial conference is also a good time to determine how many witnesses each side intends to call, so the judge can make sure there are no duplicate witnesses, and that there will be enough time at the trial for each witness to answer questions.

A pre-trial conference can also be an opportunity for each side to agree to waive some of the evidentiary “hurdles” which simply may not be necessary in a divorce case. As an example, while you will be asked to submit bank statements, it is usually not necessary to pay a records custodian from the bank to certify the records are genuine. After the “housekeeping” items are taken care of, the judge will listen to all the presented information, then will state how he or she would likely rule on the issues at hand should you decide to go to trial. Keep in mind, that new information could potentially come to light which would make a difference in the rulings, but you will get a pretty good idea of what the outcome of your divorce trial would be should you decide to go forward.

Should You Go to Trial?

Of course, only you, with your attorney’s input, can answer the question of whether you should take your divorce issues to trial. If you got the sense that you are unlikely to receive what you are asking from the divorce, you might be better off to attempt to negotiate a settlement with your spouse which is not as good as you hoped, but better than the judge is likely to rule. The same holds true of your spouse. If either of you feel you would be wasting time and money on a trial which would probably leave you with little of what you are asking for, then it could be time to work harder at a settlement.

Taking Time to Think About a Divorce Trial

You may want to take some time to think about what the judge said during the pre-trial, and this is perfectly acceptable. It is probable that the divorce trial will not be immediate, so you have time to decide whether to work harder on a settlement, consider mediation, or wait for the trial. If the judge’s comments seemed very favorable to you, it could well be worth the time and expense in order to get what you feel you are entitled to in the divorce.

Some judges will begin the actual divorce trial with an informal conference to determine whether a settlement can be reached between spouses, so you have time to consider all your options. Pre-trial hearings and pre-settlement conferences can be important tools in resolving divorce issues, so understand the process, and use it to your advantage.

Additional Questions About Florida Divorce Pre-trial Hearings

You may wonder what you will need to bring to your Florida pre-trial divorce hearing. Your attorney will take care of pre-trial memos and stipulations with your spouse’s attorney, usually several days before the pre-trial. Basically, all you must “bring” to the hearing is yourself! If you wonder whether you have to appear in person, the answer is “yes”—with a very few exceptions. Usually you would have to obtain written permission from the judge to attend the hearing via phone. Unless you have a significant hardship which would prevent you from attending the divorce pre-trial, you will probably have to attend in person.

Does the Judge Have a Significant Impact on the Outcome of the Divorce?

As you probably are already aware, a pre-trial hearing or conference is just one step in the divorce process. Another issue to consider is how the judge in your divorce has an impact on the outcome of the divorce. There are a number of people who will have an impact on your divorce—your spouse, of course, possibly family members and your attorney and your spouse’s attorney. However, the one person who could potentially exert the most influence over your divorce is the judge. In theory, judges are totally impartial and will make each and every decision based only on the law. The reality is that judges are people, and as such will almost certainly bring at least some of his or her own beliefs and biases into your case.

While the vast majority of family law judges will put their personal feelings aside, occasionally a divorce judge seems to have his or her own agenda. If you are unlucky enough to draw this particular judge, then he or she could have a great deal of influence on your divorce. Further, your Florida family law attorney will have an even bigger role to play in your divorce because of the judge’s influence. It is probable that your attorney has argued before your divorce judge, therefore knows the very best approach to take to ensure you get the best divorce settlement possible. Interestingly, there are five basic “types” of judge, although most judges are a combination of these types. These are:

  • Judges who have been sitting on the bench for a great length of time may be world-weary and have heard every imaginable story possible. This judge is short on patience and almost never grants a continuance, no matter the reason. Displays of emotion fail to have any effect on this type of judge, and spouses who attempt to lie to such a judge may end up very sorry for their dishonesty. If this judge sounds like one you don’t want to have, in fact, not all is negative. This judge will also be extremely experienced, and, in the end, will tend to rule fairly and equitably.
  • The peacemaker judge just wants everyone to be nice to one another in the courtroom, will be particularly sensitive to children’s rights, and really just wants everyone to leave the courtroom happy. Unfortunately, divorce and child custody cases are among those cases which typically have few happy endings. This type of judge, in their quest to keep everyone calm and happy, may inadvertently cause a divorce to drag on long past the time it should have ended.
  • The next type of judge is known to be “by-the-book,” no matter the situation. Everything will be done in this courtroom by the rules of law. This judge can sometimes appear callous and unkind, and it can be very frustrating for you to attempt to plead your case in front of this type of judge as he or she may not even appear to be listening. Too often, the “by-the-book” judge has already made up his or her mind about your case, almost before you have had a chance to open your mouth, sometimes making it feel as though you are not getting a fair hearing.
  • The judge who goes out of his or her way to split assets and parental responsibilities in an exact 50/50 split is known as “equalizer” judges. If your divorce really requires a judge who can look at the whole situation prior to splitting everything right down the middle, this can be a decided stumbling block during your divorce. One of the few times an equalizer judge might actually work in your favor is if your spouse is trying very hard to cheat you out of even half of the marital assets.
  • Perhaps the judge who can do the most harm to your divorce is the lazy judge; this judge can’t be bothered to read the necessary paperwork, and is generally only going through the motions, waiting for retirement or something better to come along. The outcome of a divorce in front of the lazy judge is unpredictable to say the least. He or she may do whatever it takes to get your case off the docket and you out of the courtroom. Fortunately, very few judges fall into this category.

Which Judge Will You Draw for Your Divorce?

In truth, it is likely you will get a judge who is a combination of the above types; the very best divorce judge will be unafraid to make a tough call, and highly knowledgeable regarding Florida divorce law. The truly great family court judge will be impartial and diplomatic with a touch of compassion thrown in. If you feel your divorce judge is not ruling impartially and is significantly—and negatively—affecting the outcome of your divorce, discuss your feelings with your Florida divorce attorney, who can likely offer some important insight into the judge you have drawn as well as information and assistance with your pre-trial divorce hearing and every other aspect of your divorce.

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Legal Separation in the State of Florida

There are a number of reasons couples choose to file for a legal separation rather than a divorce; a legal separation can provide parameters for spousal support, child support and co-parenting while maintaining marital status. Legal separation allows a couple to live apart, while leaving the door open for a marital reconciliation. Some additional reasons a couple might choose a legal separation include:

  • Financial benefits—In the eyes of the IRS, a legal separation means you are still married, therefore will still file a joint tax return, which generally benefits both spouses. Another financial benefit could be health insurance one spouse is entitled to through the other’s employment. Again, since a legal separation does not change your marital status, health insurance stays in place.
  • Satisfying Divorce Prerequisites—While some states have no waiting period, others require couples to live apart for a specific amount of time. In these states, a legal separation allows them to meet this requirement, while setting forth the terms of the divorce in advance. Separation agreements typically include information regarding spousal support, child custody, assets and debts
  • Religious Reasons—Some religions forbid divorce—or simply fail to recognize it. This can put couples in a difficult situation, which could potentially be “fixed”—at least temporarily—with a legal separation. It is estimated that about 13 percent of couples who legally separate will eventually get back together, so for couples whose religion forbids divorce, a legal separation allows independence, religious acceptance, and a chance to heal the marriage.
  • Military Reasons—Since military spouses are entitled to benefits under the Uniformed Services Former Spouse Protection Act if they have been married to a service member for a minimum of 10 years, a separation allows military spouses to meet this requirement and access benefits later on.
  • Social Security Benefits—Social Security benefits increase once spouses have been married for at least 10 years, so it could be beneficial to engage in a separation until that ten years has occurred.
  • Spousal Support Issues—Florida courts consider the length of the marriage when determining spousal support, therefore a legal separation could be preferable to divorce for the purposes of accessing spousal support.

As you can see, there are some very valid reasons a couple might choose a legal separation over a divorce, however the state of Florida is one of only six states which does not recognize legal separation. Even though legal separation is not recognized in the state, you may still reach court-adjudicated agreements and decisions regarding spousal support, custody agreements or child support without starting a divorce. This is because Florida does have statutes which allow couples to agree upon—or litigate—these issues without commencing the divorce. So, while it is not formally called a legal separation, the effect is essentially the same. A couple can remain legally married, which achieving legal separation in the form of a court order.

Legal Agreements Related to Separation in the State of Florida

There are three different documents which can formalize a couple’s separation in the state of Florida. These include:

  • A Separation Agreement—Yes, it does seem odd that while legal separation does not exist in the state of Florida, you can still enter into a Separation Agreement—a legally binding agreement which provides the same results as a legal separation in other states.
  • A Petition for Support—If you want to receive child support and/or spousal support from your spouse who has moved out (without filing for divorce), you will file a Petition for Support Disconnected with Dissolution of Marriage.
  • A Postnuptial Agreement—Entering into a Postnuptial Agreement will allow you to specify the terms and conditions of spousal support and the division of assets and debts.

Are Decisions Made During a Separation Legally Binding?

Perhaps one of the most beneficial issues related to a separation in the state of Florida is that any decisions you and your spouse make during the time you are living apart are not legally binding should you decide later to file for divorce. Once you file for divorce, the court will re-examine issues related to spousal support, child support, custody and asset division.

Child Support

The state of Florida has clear provisions related to child support between separated parents. The reason for this is because splits between parents are relatively commonplace and due to the fact that children born out of wedlock are equally common. During a particularly contentious separation or divorce, child support may be the easiest issue to hash out because there are very clear rules and formulas associated with child support. While paternity could be an issue between couples who have never been married, if a child is born to married parents, paternity is automatically established.

Spousal Support

While the theory behind seeking spousal support during a separation is the same as child support, in reality, it can be a bit more difficult to be awarded spousal support during a separation, and easier during a divorce. If your separation is that rare one where one spouse agrees on spousal support during the separation, then the courts are likely to readily sign off on such an agreement. Under Florida Statutes, a person who has the ability to contribute to the maintenance of a spouse and children, yet fails to do so, could find himself or herself under a court order to pay child support and possible spousal support.

Substituting a Postnuptial Agreement for a Legal Separation in the State of Florida

Division of assets and debts is usually a huge issue among divorcing couples and the state of Florida is woefully lacking in addressing this issue for those who are separated. There is no statutory provision which allows a court to sign off on asset and debt division during a separation. A couple may, however, consider a Postnuptial Agreement which is essentially a contract which governs how the couple’s assets will be treated in a future divorce. A Postnuptial Agreement is entered into by the couple after they are married and, according to Florida law must:

  • Contain the signatures of both parties
  • Be in writing
  • Be made only after after full disclosure between the couple

Full disclosure means that as part of the Postnuptial Agreement, you will both attest you have been 100 percent forthcoming with one another regarding individual and marital liabilities, assets and income. This means that you and your spouse cannot agree that he or she will pay you $1,200 per month in spousal support if you are unaware your spouse is the beneficiary of a very large trust fund. If you do enter into the Agreement and later find out your spouse was not forthcoming with you, the court could refuse to uphold the Agreement altogether. When properly prepared, a Postnuptial Agreement can allow you to obtain the same type of results as a legal separation.

Since a Postnuptial Agreement can legally be entered into any time after your marriage, you and your spouse could enter into a Postnuptial Agreement as a part of your decision to physically separate from one another. In your Postnuptial Agreement, you might want to address who will live in the marital residence (or if it will be sold), where minor children will live, the level of visitation for the non-residential parent, issues related to child support and spousal support, asset division, and what could be considered a breach of the Agreement (and how such a breach would be handled).

If you and your spouse both voluntarily enter into the Postnuptial Agreement, then you are not required to file the Agreement with the Court, however if one or the other of you fails to comply with the terms of the Agreement, you could be required to file an action in court to enforce the Agreement.

Child Custody and Visitation Issues

When drafting one of the above separation documents, it is important to remember that custody provisions cannot be considered an absolute. You can create a Parenting Plan, yet even if it is signed and notarized, a Florida court will always have the ability to alter those arrangements. Because the state of Florida—like most states—requires that the best interests of the children always be a prime consideration during a divorce, if the court believes your agreement did not properly address the best interests of your children, they will void your agreement and put a new one in place.

If Your Separation Leads to Divorce Will it Be Financially Equitable?
Perhaps your separation will lead to the two of you getting back together and continuing your marriage—or perhaps it will lead to a divorce. The state of Florida is an equitable distribution state rather than a community property state. In a community property state, marital assets are divided exactly down the middle, regardless of any extenuating circumstances.

In an equitable distribution state, marital assets are divided fairly, taking the circumstances of the marriage and divorce into account. If you have any inkling that your spouse may attempt to “cheat” you out of marital assets which are rightfully yours, consider the following information.

We’ve all heard of the person who got “taken to the cleaners” in the divorce settlement, meaning they ended up with far less than their fair share of the marital assets. This can happen for a variety of reasons. Perhaps one spouse has a more aggressive divorce attorney, or simply has the money to hire an attorney, while the other does not. Occasionally, a spouse will hide assets simply to avoid having to split them with their husband or wife.

Generally speaking, the more money involved in the marital assets, the greater the arguments will be, although there are lots of historical examples of a couple spending thousands and thousands of dollars fighting over an item which has little monetary value. plenty of cases out there of couples spending thousands of dollars and months or years fighting over a sentimental item which has little monetary value.

Understanding Your Finances

Many spouses end up with much less than their fair share of the marital assets simply because they had little knowledge of their marital finances. One spouse may have handled the financial side of the marriage and while this sounds reasonable, in reality both spouses should always have a clear picture of their finances. This means that both spouses should know where all their assets are, which bank accounts hold their money, whether or not they have a safe deposit box, how the car and house are titled as well as how much is owed on them and should have a clear understanding of pension plans and other benefits received by their spouse. Long before a divorce is in the works, you must ask the critical questions regarding your finances. Once you’ve determined where your money and assets lie, it is time to sit down and make some long-term financial decisions.

Making a Budget and Hiring an Attorney

Determine exactly how your standard of living is likely to change once the divorce is final then create a budget which works with that figure. Try to find ways you can cut expenses and adjust to the financial changes brought about by divorce. Any time you separate households, it is a pretty sure bet that your expenses will increase and that your standard of living will take a downturn. In the majority of cases, it is the woman’s standard of living which declines rather than the man’s, so women in particular must make sure they are cognizant of their financial situation.

If divorce is the decision you make following a separation, it is crucial that you have an experienced, knowledgeable Florida divorce attorney by your side from start to finish. Your attorney will make sure your rights are fully protected during the divorce, and will help you plan for your future, and obtain the marital assets you need for that future.

All divorce cases are deferred to Howard Iken.