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.

Divorce and Equitable Distribution of a Corporation

When spouses divorce, marital assets and debts are divided equitably. Typically these marital assets include real property, bank accounts, retirement accounts or personal property. But what happens when spouses own a corporate business? The company and its assets are subject to equitable distribution just like any other type of marital asset under Florida Statutes § 61.075.

The first step is to determine whether the corporation is a marital asset. Absent a prenuptial or post-nuptial agreement stating otherwise the general rule is as follows: If the business was acquired or created during the marriage, then typically it is considered a marital asset subject to equitable division. If the business was acquired or created prior to the marriage date, then typically only the increase in value of the business caused by marital labor or marital funds during the marriage will be subject to equitable division.

Typically the court will determine the company’s fair market value and award the company to one spouse, balancing the division in the equitable distribution of other marital assets. When spouses own interest in the business together, the court will not order them to continue to operate the business post-divorce unless both spouses agree.

Corporation as a Party to the Divorce

A critical consideration to make in a divorce involving a corporation is whether the corporation itself should be joined as a third-party defendant to the dissolution. The decision regarding whether to add a business as a third-party will depend on the type of business entity at issue and the spouse’s claim against the business entity. If a spouse is seeking equitable distribution of property or real property owned by a corporation, then joinder of the corporation is imperative as the family court does not have jurisdiction to adjudicate the property rights of non-parties. See Ray v. Ray, 624 So. 2d 1148 (Fla. 1st DCA 1993).

Adding the corporation as a third-party to the divorce allows the court to have jurisdiction over the corporate entity and to issue orders regarding corporate assets. This can enable the court to compel discovery of the company’s financial records and enforce transfer of shares. Bear in mind that a business can be equitably divided without the necessity of adding the corporation as a party, however if the corporation is not added as a party to the action, the family court will not have jurisdiction to order that corporate assets be transferred as part of the equitable distribution. The corporation should be joined as a party in scenarios where both spouses have access to corporate books, checkbooks, bills and when personal expenses are paid by the corporation.

If the decision is made to add a corporation as a third-party defendant in a dissolution, the spouse joining the corporation must ensure proper service of process on the entity and that there is a basis for personal jurisdiction over the entity. If the business is a foreign entity, the Florida long-arm statute must be satisfied.

Joining a corporation as a party may not be necessary when a party is not requesting a claim against the corporate entity or an unequal distribution in any of the corporation’s property. If the corporation is not added as a party, the court still has the power to prevent the disposal of corporate assets or stock to a third party.

Valuation of the Business

If both spouses work for the business, the contribution of their labor, time and skills and the appreciation of the business value during the marriage makes it highly likely that the corporation will be considered a marital asset.

When one spouse holds a smaller percentage of corporate shares or membership units in the business, Florida courts primary focus is still on the marital nature of the asset rather than the legal ownership structure. The amount of units or shares does not automatically dictate how the value of the asset is divided. The spouse owning the majority of the shares or units may however retain the operational control of the business during the divorce process, however the minority owner still has legal rights to prevent the majority owner from hiding assets and to inspect corporate books, tax returns, and financial registries.

A final note regarding valuation of a business in a divorce is that Florida courts must be careful when balancing the business value and awarding alimony. If the corporation’s income is used to calculate the value of the business (which is then divided), that same income stream cannot be fully counted a second time in calculating alimony. A forensic accountant may be required to separate the business’s true asset value from the personal income it generates for each spouse.

If you and your spouse are facing divorce and one or both or you own a business, you should consult with an experienced Florida family law attorney, to determine how best to handle joinder and valuation of a business as a marital asset. Contact Cody Law to discuss this or any other Florida family law needs.

You’ve Heard of a Prenup, But What is a Postnup?

Many people are familiar with prenuptial agreements, as an agreement entered prior to marriage, designed to protect spouses in the event of a divorce. But what exactly is a postnuptial agreement? The short definition of a postnuptial agreement is a written agreement entered into by spouses after a marriage, defining the division of assets, debts and spousal support in the event of death or dissolution. Essentially it functions just like a prenuptial agreement, but is entered into after marriage. A postnuptial agreement can be entered into anywhere from the day after the marriage to many years down the road.

One essential difference between a prenuptial agreement and a postnuptial agreement is that postnuptial agreements are more heavily scrutinized by the courts for fairness, due to the confidential relationship between spouses. In order to enter a valid postnuptial agreement several requirements must be met:

• Written Agreement: The agreement must be written and signed by both spouses.

• Voluntarily Signed: The agreement must be entered into freely, without fraud, duress, or coercion.

• Full and Fair Financial Disclosure: Both spouses must provide a complete disclosure of all assets, liabilities and income to each other.

• Fairness: The agreement must not be “unconscionable”. Florida courts can invalidate an agreement if it is deemed unreasonable or unfair to one spouse.

A postnuptial agreement can extremely beneficial in creating stability and comfort in a marriage, particularly if there have been changed financial circumstances. It can set expectations and help spouses feel more at ease by having honest conversations and working through issues that may cause uncertainty and tension. In some instances a post-nuptial agreement may adequately address marital concerns spouses are facing in order to avoid a divorce.

What can and can’t be included in a postnuptial agreement?

A postnup can help spouses protect premarital assets, to prevent them from becoming marital property. It can address existing debt and establish how alimony will be handled in the event of a divorce. Postnuptial agreements can be particularly helpful if one spouse owns a business and has concerns over keeping the business separate property in the event of a divorce. Both prenuptial and postnuptial agreements can address how future assets will be treated, including assets that increase in value during a marriage.

Florida law does not permit non-financial matters to be included in a postnup. These prohibitions include child support, time sharing, and parental responsibility, which will always be determined based on the best interests of the child.

What information will be needed to get started?

The basic information needed in order to begin the process of formulating a prenuptial or post nuptial agreement is as follows:

• A list of all assets (including any real estate, savings, checking and retirement accounts)

• A list of all debts (mortgages, loans, credit cards, and business debts)

• Most recent account statements

• Information regarding income and expenses.

The most important consideration, especially with a postnuptial agreement, is each spouse making a full and fair disclosure to the other. You should consult with an attorney to discuss whether a postnuptial agreement will be beneficial in your unique situation and how the process will work from consultation to signing. Contact Cody Law if you’s like to discuss your options and explore the benefits of a postnuptial or prenuptial agreement.