Family on the Run: Evading Service of Process in a Florida Family Law Matter

We’ve all heard the term “you’ve been served,” but what exactly are the ins and outs of serving someone in a Florida family law matter? When initiating a new family law matter, due process requires the petitioner to serve the initial pleadings on the respondent via service of process. This ensures that a respondent has proper notice of the proceedings and opportunity to be heard. Typically a Petition is filed, a summons is issued for service of process at the respondent’s address, and a process server or sheriff goes and delivers the papers to the respondent personally, by knocking on the door and handing them the papers. Sometimes though things aren’t so simple. People may avoid being served to delay court proceedings, or in hopes that the case will be dismissed entirely. Other reasons for avoidance may be due to misunderstanding how the legal process works or to avoid financial responsibility. Common tactics of those avoiding service include refusal to answer the door, ignoring phone calls, providing incorrect addresses or employment information, or leaving the residence during service attempts.

Actively evading service of process will not stop a case from moving forward. If a party hides or refuses to accept service there are other remedies available to the petitioner. Alternative methods of service include drop service, substituted service and even service by publication.

Drop Service: If the process server is able to confirm the person’s identity but not able to physically handoff the papers, service can be accomplished by leaving the papers with the person, in their immediate vicinity, by placing them on the doorstep for example and notifying the person being served of the nature of the documents.

Substituted Service: Under Florida Statutes §48.031, the papers can be left at the person’s home with any person residing there who is over age 15, so long as appropriate attempts to serve the respondent have been made. If the matter is adversarial then the petitioning spouse cannot accept substituted service for the respondent. Substituted service may be made on a respondent doing business as a sole proprietor at their place of business, during regular business hours, by serving the person in charge of the business at the time of service, if two attempts to serve the owner are made at the place of business.

Service at the Workplace: If service at a person’s home address fails, then the process server can attempt service at the respondent’s place of business.

Service by Other Means: Florida Statute §48.102 provides for other methods the court may allow to complete service when other attempts fail. In order to use alternate methods, it is required to file a motion with the court detailing multiple failed attempts to serve the respondent at their home, work, or other known addresses with a process server. The proposed alternate service method must be shown to be “reasonably effective;” for example an email address must be proven to be in use and accessible to the respondent. Service by other means cannot be utilized unless the judge signs an order granting the motion to serve by alternate means. Some methods courts may allow include service by email, service by Fed-Ex or UPS with delivery confirmation (without signature required). In Olin Corp vs. Haney, a Florida case, it was determined that service of process was affected when the process server read the papers to the individual and left the copy in their door.

Service by Publication: If you are unable to locate the respondent after a diligent search, the court may allow service by publication in a court-approved newspaper. You must first file a sworn statement describing your search efforts and file a motion for service by publication. The court cannot order child support, alimony or division of property in the petitioner’s possession when service by publication is used.

Service on Secretary of State: When the respondent is an out of state resident or corporation and other methods of service are ineffective, service may be made under Florida Statute §48.161 by substitute service on the Secretary of State.

When a party actively and intentionally avoids being served, this is called evasive service. If you can prove to the court that the respondent is actively evading service, then once they are effectively served, you can recover fees for the costs of the service attempts and delay caused. Florida law requires a petitioning party to effectuate service of the petition within 120 days of filing. If the 120 day deadline is approaching you may file a Motion to Extend Time to Serve, documenting the process server’s attempts over the 120 days since filing.

Once the evasive respondent is eventually served, they will have 20 days from service to respond to the petition. If no responsive pleading is filed then the petitioner can move for default judgment, which will result in the respondent losing the right to present evidence or contest claims made by petitioner.

If you have a Florida family law issue you need guidance with, reach out to Cody Law to schedule a consultation.

School District Designation and School Choice: Decision-Making Deadlock

One of the biggest battles in family court, aside from time sharing is school district designation and/or school choice for the child. In Florida, when a parenting plan gives parents joint parental responsibility, one category of major decisions co-parents must make together is educational decisions. Both parents must agree on the child’s school district designation, otherwise the court must decide the designation based on the child’s best interests. School district designation refers to which parent’s address will be defined in the parenting plan as determining the child’s default zoned public school. School choice refers to alternative school enrollment options such as magnet schools, private schools, charters or open enrollment.

Once it is established legally, which parent’s address will be used for school zone designation, if that parent moves to a new neighborhood, the child is not automatically enrolled in the new school district. The previously designated school remains the official designation unless both parents agree to the new school, or the judge approves a change in the designation. Under Florida Statute §61.13, when parents have joint parental responsibility, neither parent can unilaterally change a child’s school and doing so when joint parental responsibility has been legally established can be grounds for contempt.

If parents do not desire to have their child attend the zoned public school, they may want to pursue Controlled Open Enrollment to apply for a school outside of their district. Controlled Open Enrollment required applying in a timely manner to the charter school, specialized program, magnet school or a neighboring district. When parents have joint parental responsibility they are required to both consent to applying to and accepting a school choice transfer.

What happens when the parents cannot agree on the school designation or school choice? The first question is whether the parenting plan already contains a provision for what happens if parents cannot agree on school choice. Some parenting plans have a “tie breaker” clause which would designate one parent with the final decision-making authority to make educational decisions when the co-parents cannot agree. If there is no tie breaker provision in place and the co-parents cannot agree on the school then the court can make the decision on which parent to designate as the ultimate decision maker for education purposes. In making this decision, the court will consider the child’s best interests, the quality of the available schools and proximity to the parent’s homes. One very important distinction to make is that the court considers the best interests of the child; the convenience of the parent is not the court’s primary concern.

Factors the court may consider include the child’s individual learning needs, the preference for keeping children in a school they are already established with and familiar with, which parent can provide a better quality of school, transportation logisitics (such as whether the school is within one or both parent’s zone for school bus transportation or not), and whether the school offers programs tailored to any particular needs of the child (such as an IEP program or IB program). If one parent wants the child to attend their zoned school and the other parent wants to apply for school choice, the analysis is similar, however the court will consider which choice serves the child’s best interests and will consider factors such as commute times, proximity to the time sharing schedule, and quality of the school choice school versus the zoned school.

Lately, more and more parent’s are considering homeschooling as another possible option for school choice. When parent’s cannot agree on whether a child should be home schooled, the court will apply the same analysis, considering the best interests of the child. Homeschooling disputes can be particularly contentious when one parent will serve as the sole educator. A large part of the court’s consideration of the child’s best interests in determining whether ultimate educational decision-making should be awarded to the parent seeking to homeschool, is the quality of the home education. The parent must show that the state’s home education laws have been met and that the education being provided is of sufficient quality.

Co-Parents are strongly encouraged to try to resolve school designation and school choice issues where possible, before seeking court intervention. If you are facing a deadlock in education decision-making with your co-parent, contact Cody Law, to discuss all of the nuances to this issue and explore possible options to resolve the matter.

The Unresponsive Spouse: Default in a Dissolution of Marriage

When you initiate a divorce by filing a Petition for Dissolution of Marriage with the court, the initial pleadings must be served on your spose via process server. Timing is crucial when it comes to responding to the petition. In Florida the responding party has 20 days from service to file their response. But what happens when your spouse fails to participate in the divorce? If your spouse fails to respond to your divorce petition, you may be wondering what happens next. At Cody Law, we aim to guide you through each step in the process and keep you informed and educated along the way.

What Happens Now?

The first step, after the 20 day period has elapsed with no response, is to obtain a Clerk’s default. From there, once defaulted, the case will proceed without your spouse’s input. The court will require a final hearing in order to enter the Final Default Judgment. The relief you requested is not automatic, just because your spouse has been defaulted however. The court will not grant any requests that are unreasonable, even without the other party’s participation. Even if your spouse does not participate, you will still need to present evidence to the judge and testimony in support of your requests for relief. Depending on your individual situation, the court will need to determine each of the following issues, without your spouse’s input. :

• Division of Assets and Debts: Under Florida’s equitable rules, marital assets and debts are divided “fairly” although not necessarily equally. If you proposed a division of assets in your petition, the judge may follow your proposal as long as it is reasonable. The judge however has discretion to modify the proposed division if it is unfair or does not meet requirements under the law.

• Alimony: If you requested alimony in your petition, you will need to present evidence to the judge showing that you have a need for alimony and that the other spouse has ability to pay. The court can award alimony without the other spouse’s input so long as sufficient evidence is presented showing that alimony is necessary in your case.

• Parental Responsibility, Timesharing and Child Support: Even in a default situation, where there are minor children involved, the court must determine parental responsibility, timesharing, and child support based upon the best interests of the child. Child support is calculated under the Florida child support guidelines contained under Florida Statute 61.30, using the spouses’ financial information and the amount of overnights awarded to calculate the support amount. You should provide your financial affidavit to the court. If your spouse fails to provide financial information, the court may estimate their income based on available evidence.

  Does Not Responding Mean We Stay Married?

  A common misconception is that if a party just doesn’t respond then the divorce can’t happen. Florida is a no-fault divorce state, which means that the court only requires proof that the marriage is irretrievably broken in order to grant the divorce. As long as all procedural requirements are followed, the judge will enter the divorce, even without the other spouse’s participation.

  Even if your spouse is not participating in your divorce, you still need to present your case to the judge and ensure that your requests align with Florida Law. If you have questions about divorce or obtaining a default divorce in Florida, contact our office to schedule a consultation.

Go Away and Leave Me Alone: Florida Injunctions for Protection

An Injunction (sometimes referred to as a restraining order) is a Court Order which directs a person not to have contact with another. An Injunction can prevent abuse and threats of abuse and can prevent an abuser from contacting or coming near a victim. Florida has various forms of injunction available:

• Domestic Violence Injunction: This applies to people who live in the same household or who have children with each other. “Family” can include a spouse, an intimate partner who you live with but are not married to, blood relatives, adopted children, step parents or step children.

• Dating Violence Injunction: This applies to people who are or have been in an intimate or dating relationship and who have interacted with their abuser within the six months prior to filing the petition for injunction.

• Sexual Violence Injunction: This applies to people who do not live together or share children together but when a sexual battery has been committed and reported to law enforcement.

• Repeat Violence Injunction: This applies when none of the other categories of relationship (i.e. Domestic, dating, or sexual) apply. This type of injunction can be used between neighbors, coworkers, former friends etc. For this type of injunction to apply there must have been at least two incidents of physical violence, threats, or stalking and one or more incident must have occurred within the six months prior to filing the petition for injunction.

• Stalking Injunction: These are intended to protect a person from being followed, harassed, or cyberstalked by another person. For this type of injunction there does not need to have been any prior relationship (this can apply to persons such as former friends, acquaintances, neighbors, or coworkers etc.). Florida defines stalking as “Willfully, maliciously, and repeatedly following, harassing, or cyberstalking another person.” Harassment is defined as “engaging in a course of conduct that causes substantial emotional distress and serves no legitimate purpose.” Cyberstalking is defined as “repeated, unwanted online contact or surveillance that results in distress to the person targeted.”

Once the correct type of injunction is determined, the process is initiated by the filing of a Petition for Injunction. The injunction process is designed to be accessible to parties with and without counsel, so an unrepresented individual can go to the family law department of the County Courthouse and access the forms to complete and file, during business hours. If the incident occurs outside of business hours then abuse should be reported to law enforcement, who can contact the clerk if it is determined an injunction is needed. Although the process is accessible with or without counsel, having representation throughout the process can be beneficial in ensuring you obtain the protection that is necessary.

When the forms are completed and submitted to the Clerk, a determination can be made immediately of whether a temporary injunction will issue. If a temporary injunction is entered by the judge, the violator will be served a copy of the petition, notice of hearing and the temporary injunction. A hearing on the injunction will be set within 15 days. The hearing will be evidentiary, meaning evidence can be admitted and testimony offered. Having experienced counsel to represent your interests can be extremely beneficial during the hearing, to make sure you can show the judge the required elements to enter the injunction on a permanent basis. Counsel can also facilitate a possible consent agreement with the other party and/or their counsel so that a hearing may not be necessary to obtain the relief sought.

Contact Cody Law in St. Augustine, Florida to learn more about the process and for guidance in obtaining an injunction for protection.