Sunday, June 30, 2019

Thinking of a “No Court Divorce in Florida”? – Think Again.

I've seen some nonlawyer document preparers marketing their services for a No Court Divorce. A No Court Divorce is possible when the divorcing parties agree on every facet of their divorce, including division of assets and debt; child support; and child custody. While a divorce in Florida is possible and even legal without either party ever appearing in court, it may not be the best idea. And here's why:

Most importantly, the lack of legal assistance and judicial oversight could lead to disastrous results. By definition, nonlawyer legal document preparers may not advise consumers [pro se litigants] about their specific legal rights or remedies; advise about legal strategies; or represent anyone in court. Pro se litigants may not be aware of rights they are giving away, and without a court hearing, their lack of knowledge could be reflected in the Final Order of Dissolution. Many of the nonlawyers preparing the forms for No Court Divorces, do not rely on mediators to ensure that the parties are in agreement. Rather the document preparer may act as the de facto mediator and is unlikely to be certified as a Florida Family Court Mediator.

One of the parties may be going along to get along, and believe that they have no choice.

The usual Florida divorce process is that one party, the Petitioner, prepares the required documents with the help of a document preparer, an attorney, or without help, and then serves the other party, who is called the Respondent. The Respondent has an opportunity to file an Answer and can agree or disagree with the documents prepared by the Petitioner. The No Court Divorce process requires that the parties are in full agreement on all issues.

I have prepared Florida divorce documents for pro se litigants for over twenty years. Very few of these divorces were completely without disputes. After all, if a couple were in complete agreement about everything, then they probably wouldn't need a divorce to begin with. When there are disputes, the court will refer the parties to a mediator to help them find a resolution.

Examine why its important to you to not appear in court.

Are you in the military and stationed overseas?
Even if you are the Petitioner in the divorce, you can request to appear telephonically. You make this request through a motion to the court.

Do you simply want to avoid the inconvenience?
If your reason for not wanting to appear in court is mostly due to convenience, you may need to consider your priorities. A divorce is a life changing event, not taking the time to attend the court hearing, and taking the chance that something goes wrong which could have been avoided is a chance that you should carefully consider.

Are there other legal issues that may come out? Outstanding warrants? A deportation order?
My first suggestion is that perhaps those issues need to be addressed prior to filing for divorce at all. But, if the divorce wasn't your idea, then you may not have that choice. However, only the Petitioner is generally required to appear in court anyway. The Respondent can waive his/ her appearance.

If your other issues are ongoing and cannot be easily resolved, you still have some choices. As the Respondent, you can waive your appearance or request to be heard telephonically. As the Petitioner, you can request to be heard telephonically, but that may or may not be allowed depending on your specific reason and the judge's discretion. Florida attorneys are specifically allowed under Florida Bar rules to offer limited services for family law. This is often called “unbundled services”, and can mean anything from a review of documents to an appearance at a court hearing.

I believe that some document preparers who aggressively market the No Court Divorce process prey on the fear of undocumented immigrants who are already afraid to appear in court. Florida family courts do not have jurisdiction over immigration matters. However, a deportation order or deportation of a parent would have an effect on the best interest of a child. So a divorce with children where one or both of the parents are undocumented, should be handled with extreme care and caution. A document preparer may not have the knowledge and expertise to know how to proceed. And, even if that document preparer has both knowledge and expertise is prohibited from offering legal advice. Parents in this situation need legal advice, not simply a way to avoid a court appearance.

An unintended consequence of a No Court Divorce can be that the divorce documents are filed in a distant Florida county. Not all Florida counties allow No Court Divorces, and it isn't necessary to reside in a certain county to file for divorce in that county. However, if there are subsequent proceedings, perhaps enforcement of child support or a modification of time-sharing, the parties would need to file these documents in the county where their divorce was filed, which may be where neither parent resides.

So, if you were thinking of filing a No Court Divorce – Think Again. You might be creating ongoing problems, by trying to avoid a court appearance.

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