Summary Judgment in Florida Family Law

Searching for information about summary judgment in Florida family law? A family lawyer and divorce attorney often must litigate 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 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. 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, which 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 about how the Rule may apply to a family law case. Hopefully, this article will partially demystify the summary judgment in the Florida Family Law Rule.

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.

The 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. The respondent files a motion to dismiss, which is denied, or outright fails to file a motion to dismiss. Instead, the 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 be noticed for a full day of trial. The case never should have been allowed to progress in the absence of triable facts or merits. Once an answer and/or a counterpetition have 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 under Florida family law. This is no simple matter, as it is highly technical and has rarely been battle tested in family law court.

In our hypothetical Supplemental Petition, the petitioner’s main allegation is that the live-in girlfriend of the respondent or 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, which defines 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 been resolved with the case being removed. Now, having progressed due to the failure of due diligence and/or litigation strategy by the respondent, all that remains in the arsenal of the respondent and the respondent’s counsel is to file a motion for summary judgment. The respondent must demonstrate to the court that 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.