Pretrial

A Pretrial in a family law case happens after the parties have been to a mediation which was unsuccessful; or an impasse was reached.  At this point the parties are on their way to a conclusion to their case.  This is usually a more informal hearing and last for about 10-15 minutes.  This is nothing to get stressed about.  The attorney will usually do all of the talking for you, and you will be out of the Courtroom before you know it!

Depending on the County this will be set in one of two ways.  Either:

  1. A Notice of Trial is filed with the Court:  This signals to the Judge that your case is ready for trial and the Court will automatically set a pretrial on the docket and send out notice; OR
  2. An Attorney or a Party gets in contact with the Judge’s judicial assistant and coordinates a pretrial with all parties involved.

Judges will normally not set the case for a pretrial until EVERYTHING has been completed.  This includes mediation, a parenting course (if children are involved), compliance with mandatory disclosure, etc.

Almost all Courts require the submission of a pretrial memorandum at least 72 hours prior to any pretrial hearing.  This memorandum sets out the facts and issues of each particular case.  It enables the Judges to scan the memorandum to get the gist of a case instead of having to riffle through the court file.

The Memorandum will generally set out the following:

A. THE MARRIAGE

  1. Date and place of marriage.
  2. Date of separation.
  3. Date of filing petition for dissolution of marriage.

 

B. THE CHILDREN

  1. Names and ages of the children involved, if any.
  2. The party who presently has primary residential care of the children.
  3. The amount of child support proposed for the children.
  4. Whether or not the children are presently covered under any medical insurance policy.
  5. What, if any, special medical problems any of the children have.
  6. Suggested parenting plan.

 

C. ALIMONY

  1. Nature of the alimony; permanent, durational, rehabilitative, lump sum,bridge-the-gap or a combination of same.
  2. Amount of alimony, if any, proposed by each party.
  3. If rehabilitative alimony is requested, has a written plan been submitted?

 

D. PERSONAL PROPERTY

  1. A list of all personal property in controversy.
  2. Suggested disposition of said property.
  3. The value of each piece of property showing any lien or obligation againstsaid property, and who is obligated for payment.
  4. Life insurance policies, if any, and whether said policies are term or wholelife, the beneficiary of said policies, and their present cash surrender value.
  5. Date of valuation.

 

E. REAL PROPERTY

  1. A list of all real property in controversy.
  2. The value of each parcel of property showing any lien or obligation againstsaid property, and who is obligated for payment.
  3. What interest, right of claim or equitable interest each party claims in each parcel of property.
  4. Suggested disposition of the property.
  5. Date of valuation.

 

F. RETIREMENT PLANS

  1. A list of all retirement, pension, profit sharing, annuity, deferred compensation and/or insurance plans whether they are vested or non-vested.
  2. The value of the retirement plans or other benefits.
  3. What interest, right, claim or equitable interest each party claims in the property.
  4. Suggested disposition of the plan or benefit.
  5. Date of valuation.

 

G. DEBTS

  1.  A list of all unsecured debts and the amounts thereof.
  2.  A list of all secured debts including the security for payment of the debts andthe amounts thereof..
  3. Suggested disposition of the debts.
  4. Date of valuation.

 

H. ATTORNEY’S FEES AND COURT COSTS

  1.  The amount of attorney’s fees and court costs sought by either party from the other (estimate to conclusion of trial)
  2.  Will testimony be offered on this issue at trial or at subsequent hearing?

 

I. MISCELLANEOUS

  1.  Request for amendments to the pleadings.
  2. Necessity for further discovery. Discovery subsequent to the discovery deadline shall be permitted only on the order of the Court for good cause
  3. shown and which will not delay the trial of this cause.
  4. List admissions and stipulations to avoid unnecessary proof.
  5. All motions not heard at least ten (10) days prior to trial shall be deemed abandoned or waived, absent good cause shown.
  6. Requests for judicial notice.
  7. List issues to be resolved.
  8. Estimate the time needed for trial. (The parties will be expected to completethe trial within the allotted time which the court will equitably allocatebetween the parties)
  9. Are child support and/or alimony payments requested to be made through the State Depository Unit?

 

ATTACHMENTS TO THE MEMORANDUM:

  •  A fully executed Financial Affidavit.
  •  A Child Support Guideline Worksheet.
  •  A proposed chart of equitable distribution in the form attached.
  • A schedule of all photographs, exhibits and documentary evidence which the Party intends to use at trial.
  • A witness list giving all names, addresses and telephone numbers of individuals who may be called by a party. The witness list shall specifically designate all expert witnesses.

Depositions

Once you obtain a witness list from an opposing party you may want to consider taking depositions of some, if not all, of the witnesses.  This will include additional costs since you have to pay for a court reporter to transcribe the deposition, and your attorney for attending the deposition.  However, you will be able to obtain VALUABLE information prior to trial as to what the witnesses is planning on testifying to.  This prevents you, and your attorney, from being blindsided by something at trial.

Witnesses you should depose prior to trial include:

  1. The opposing party.
  2. Any EXPERT witnesses.

An additional benefit of taking the deposition of a witness includes the increased ability to “impeach” them, or show that they are lying, at trial.  This is because you will have a transcript of sworn to testimony that they gave at the deposition, and if they deviate from that testimony at trial you can use the transcript from the deposition.

Both the parties in a case are required to submit a witness list with the pretrial memorandum.  This list should include ALL the witnesses you plan on calling for trial.  In addition to the names, you need to list addresses and phone numbers for the witnesses.  If a witness is not listed on your witness list prior to trial, the Judge will exclude them from testifying.  In Florida, each party is entitled to proper notice of who is to be called to trial so that he/she may be properly prepared.

Witness Lists

Common Witnesses to include on the witnesses list are:

  1. Both the parties in a case.
  2. Any witnesses who would be able to testify to relevant factors for your case (teachers, neighbors, co-workers, etc.)
  3. Any and All witnesses intended to be called by the opposing party.
  4. Any rebuttal witnesses.
  5. Any expert witnesses you plan to use (forensic accountants, business valuators, property appraisers, psychologist/psychiatrist etc.)

Once this is turned over the other side has the ability to contact your witnesses and even set them for depositions if they wish.  However, you will have the same ability with their witnesses.

You would need to subpoena any witness you plan to call to trial.  If you do not issue a subpoena then the Court would have no remedy if the witness did not show up to trial.

Trial Financial Affidavit

It is important to make sure you review the Financial Affidavit which was submitted to the Court and make any changes necessary prior to the trial.  The Financial Affidavit is a sworn to statement listing your income, expenses, assets, and liabilities.  The Judge’s often use the Financial Affidavits to establish things like alimony, child support, and values of assets or liabilities.  Due to this, it is EXTREMELY important that these financial affidavits are 100% accurate.

It is a party’s responsibility to update financial affidavits as they become necessary.  For instance if a party loses his/her job, or get a promotion, he/she is required to inform the Court by updating the financial affidavit.

The Pre-Trial Hearing

At the actual Pretrial Hearing all parties need to be present.  The Judge will review the submitted Pretrial Memorandums and go over the probability of the case actually going to trial as well as the following preliminary matters:

  1. Do amendments need to be made to the pleadings:  If you forgot to plead something in your original petition NOW is the time to ask the Court for permission to amend.  Remember, if something is not plead the Judge can now rule on it.
    1. If allowed the Judge will usually order that the pleadings be amended and filed within a certain time frame.
    2. Example:  The parties have a marital home and cannot agree on who is to get it.  The Petition does not include a count of Partition. If the pleadings are not amended then the Judge CANNOT order the sale of the home for the proceeds to be split.
  2. Are there any pending Motions to be heard:  Usually, if the issue is not raised, motions not heard at least 10 days prior to the trial date are deemed waived.
  3. Disclosure/Discovery:  The Judge will usually place a deadline on the time frame to turn over any disclosure/discovery.  Items not turned over by the appropriate time will be excluded at the trial.
  4. Stipulations:  The parties will determine if they will stipulate to certain facts or witnesses in order to speed the trial along.  These usually include stipulating to a records custodian for entering documents such as bank records, and allowing copies instead of originals for documents.
  5. Issues to be decided:  The Judge will ask what issues are left to be resolved.  Sometimes parties have resolved some of the issues, and only a few need to be decided by the Judge.  This will give the Judge an idea of what kind of case the trial is going to be.  Main issues in a family law case always can include the following:
    1. Time Sharing/Parenting Plan.
    2. Child Support/Retroactive Child Support.
    3. Equitable Distribution.
    4. Alimony.
    5. Attorney’s Fees.
  6. Time for trial:  The Judge will usually have the parties specify how much time the trial is going to take.  The Judge will then allot the parties this amount of time for the trial.  It is usually better to overestimate a time then underestimate a time, because most Judges will hold you to this.  Even if you are not complete the Judge will cut you off, and you may have to wait MONTHS to have another time to complete the trial.