The opinion
Supreme Court of Florida
____________
No. SC16-978
____________
IN RE: AMENDMENTS TO FLORIDA FAMILY LAW RULES OF
PROCEDURE.
[March 16, 2017]
PER CURIAM.
This matter is before the Court for consideration of proposed amendments to
the Florida Family Law Rules of Procedure and Florida Family Law Rules of
Procedure Forms. We have jurisdiction. See art. V, § 2(a), Fla. Const.
BACKGROUND
The Family Law Rules Committee (Committee) has filed an out-of-cycle
report recommending the Court adopt multiple amendments to the Florida Family
Law Rules of Procedure to create a stand-alone set of rules to govern family law
proceedings. The Committee also proposes amendments to several family law
forms and proposes several new family law forms. All of the rule and form
amendments were approved by the full Committee and the Board of Governors of
The Florida Bar.
The Family Law Rules were first adopted by the Court in 1995. See In re
Family Law Rules of Procedure, 663 So. 2d 1047 (Fla. 1995). The Committee in
that case initially proposed stand-alone rules that incorporated the Florida Rules of
Civil Procedure into the Family Law Rules and also included rules unique to
family law proceedings. However, at that time, the Board of Governors of The
Florida Bar took the position that the Family Law Rules should reference the civil
rules where necessary rather than totally incorporate them with significant changes.
Id. at 1048. The Court agreed with this position. Although the Court found the
Committee’s stand-alone approach to the new rules “well intended,” it determined
that putting the text of the civil rules, with stylistic and substantive changes, into
the new rules “would make it difficult for general practitioners to easily discern
what differences existed between the civil rules and the family law rules and what
changes were in fact substantive and what changes were only stylistic.” Id. at
1047. Thus, the Court modified the Committee’s proposals “to require that the
civil rules apply to family law matters except as set forth in the family law rules.”
Id. at 1048. The modified rules were adopted by the Court, with some revisions
after further comment, and made effective January 1, 1996. See id. at 1049.
At present, the Board of Governors has unanimously voted to approve the
proposed amendments in this case, and only three comments were filed in response
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to the Court’s publication of the proposed amendments—only one of which
opposes the stand-alone concept. Further, the Committee explains in its report:
Over the years, the whole concept of “family law” has grown
from simply being “divorce court” into a now distinct court—one that
has to constantly find ways to handle a growing number of issues that
arise in twenty-first century families, such as paternity proceedings,
disputes over time-sharing and visitation, domestic violence, and
enforcement proceedings.
The Commission of Family Courts, created in 1990, has
recommended “that the Supreme Court require each judicial circuit to
submit to the court for approval a local rule establishing a family
division in its circuit or a means to coordinate family law matters that
affect one family if the circuit or part of the circuit is of such limited
size that it is unable to administratively justify such a division.” In
Re: Report of the Commission on Family Courts, 588 So. 2d 586 (Fla.
1991).
As society went through radical changes, various areas of
government developed to assist families, creating an evolution such
that the practice of what had simply been “family law,” which seemed
to fit under the umbrella of the Civil Rules of Procedure, developed
into the practice of marital and family law. This practice is now
represented in The Florida Bar by its own section and in the Judiciary
by each Circuit’s Family Law Division.
The Committee also contends that a stand-alone rule set will be helpful and
less confusing for pro se litigants in that for most issues they will not have to
consult multiple sets of rules for guidance. Given the developments in the practice
of marital and family law, the benefit to pro se litigants, and the Board’s support
for the proposals, we agree that consideration of a stand-alone set of rules for
family law cases is warranted.
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Prior to submission to the Court, the Committee published its proposals for
comment in the August 1, 2015, edition of The Florida Bar News. Comments were
received from several attorneys, a general magistrate, and the Family Law Section
of The Florida Bar (Section). After consideration of the comments addressing
specific rules, the Committee made further revisions to the proposed amendments.
The rules that were amended in response to the comments received were then
republished in the October 15, 2015, edition of The Florida Bar News. No
additional comments were received in response to the second publication of the
proposed rule amendments.
After the report was submitted to the Court, the proposals were again
published for comment. Comments were received from the Section, Gregory
Firestone, Ph.D., and the law firm of Sasser, Cestero & Sasser, P.A. The
Committee filed a response to the comments.
Upon consideration of the report, the Committee’s proposals, the comments,
and the Committee’s response thereto, we adopt the proposed rule amendments
creating a stand-alone set of Family Law Rules of Procedure, with several
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modifications. Those modifications, as well as several issues and concerns raised
by the comments filed, are discussed below.1
AMENDMENTS2
First, the proposed amendment to Florida Family Law Rule of Procedure
12.110 (General Rules of Pleading), in part, adds new subdivision (c) pertaining to
verification of documents. As proposed, new subdivision (c)(1) would provide the
statement to be included when verification is done in an individual capacity, and
new subdivision (c)(2) would provide the statement to be included when
verification is done in a representative capacity on behalf of a corporate entity.
One of the comments filed takes issue with this proposed new provision pertaining
to verification, specifically, the provision containing the oath to be given when a
document is verified in a representative capacity. This provision is not contained
in current Florida Rule of Civil Procedure 1.110, and the Committee does not
explain the source of the wording it proposes. Accordingly, we decline to adopt
this particular portion of the proposed amendment to this rule.
1. The Committee has proposed, and we adopt, other minor and editorial
amendments to the family law forms to conform to the Court’s Style Guide for rule
amendment submissions.
2. Other minor and editorial amendments are made to the rules.
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Next, the proposed amendments to Florida Family Law Rule of Procedure
12.210 (Parties), in part, create a new subdivision (b) incorporating the provisions
of Florida Rule of Civil Procedure 1.210 and stating that the “court shall have the
discretion to appoint a guardian ad litem and/or attorney ad litem for a minor,
incapacitated, or incompetent person not otherwise represented in an action or shall
make such other order as it deems proper for the protection of the minor,
incapacitated, or incompetent person.” A comment filed pertaining to this proposal
raised the concern that this language is contrary to section 61.401, Florida Statutes
(2016), and case law, noting that in some circumstances, appointment of a guardian
ad litem is mandatory. See Turnier v. Stockman, 139 So. 3d 397, 400 n.2 (Fla. 3d
DCA 2014) (setting forth circumstances in which courts may or must appoint
guardian ad litem).
Florida Rule of Civil Procedure 1.210(b), currently applicable in family law
proceedings, provides in part that the court “shall appoint a guardian ad litem for a
minor or incompetent person not otherwise represented in an action or shall make
such other order as it deems proper for the protection of the minor or incompetent
person.” Although this provision uses the term “shall,” appointment of a guardian
ad litem under this rule has been construed as being discretionary in nature.
Tallahassee Mem’l Reg’l Med. Ctr. v. Petersen, 920 So. 2d 75, 78 (Fla. 1st DCA
2006). Thus, by changing this provision from “shall appoint” to “shall have the
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discretion to appoint,” the Committee has not changed its meaning. Further, courts
applying this rule have recognized that although the rule is discretionary, other
specific statutes and rules may require appointment of a guardian ad litem under
certain circumstances. As pointed out by the comment, section 61.401, Florida
Statutes (2016), provides:
In an action for dissolution of marriage or for the creation,
approval, or modification of a parenting plan, if the court finds it is in
the best interest of the child, the court may appoint a guardian ad litem
to act as next friend of the child, investigator or evaluator, not as
attorney or advocate. The court in its discretion may also appoint
legal counsel for a child to act as attorney or advocate; however, the
guardian and the legal counsel shall not be the same person. In such
actions which involve an allegation of child abuse, abandonment, or
neglect as defined in s. 39.01, which allegation is verified and
determined by the court to be well-founded, the court shall appoint a
guardian ad litem for the child. The guardian ad litem shall be a party
to any judicial proceeding from the date of the appointment until the
date of discharge.
Because the proposed amendments do not change the meaning of the rule
and are not intended to supersede statutes requiring appointment of a guardian or
attorney ad litem in specific circumstances, we defer to the expertise of the
Committee and adopt the amendments to this rule as proposed.
Next, the proposed amendments to Florida Family Law Rule of Procedure
12.270 (Consolidation; Separate Trials) delete the existing provision referencing
Florida Rule of Civil Procedure 1.270 and replace it with a provision stating that
“[r]elated cases and consolidation of cases are governed by Florida Rule of Judicial
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Administration 2.545.” Concerns were raised in a comment to this proposal that
this change would result in increased litigation and expenditure of judicial
resources by calling into question the customary practice of bifurcating into
separate trials the issue of the validity of a premarital or postnuptial agreement and
the remaining issues in a dissolution of marriage proceeding. The comment noted
that Florida Rule of Judicial Administration 2.545 (Case Management) does not
specifically address the consolidation or bifurcation of trials and contended that
deleting the reference to Florida Rule of Civil Procedure 1.270 could be construed
as taking away the ability of family law trial judges to bifurcate family law cases
on an issue by issue basis.
Although Florida Rule of Judicial Administration 2.545 does not specifically
address consolidation or bifurcation of trials, it does address related cases. Rule
2.545(d) requires a petitioner in a family case to file a notice of related cases. The
definition of “family cases” in the rule includes both “dissolution of marriage” and
“declaratory judgment actions related to premarital, marital, or post marital
agreements.” Thus, the rule already contemplates that these types of actions are
separate but possibly related “family cases”; there should be no need to bifurcate
them. Florida Rule of Judicial Administration 2.545 also requires the trial judge to
“take charge of all cases at an early stage in the litigation,” “control the progress of
the case,” and “take specific steps to monitor and control the pace of litigation,”
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including “developing rational and effective trial setting policies.” There is
nothing in these provisions that would prevent the trial court from effectively
managing related dissolution of marriage and declaratory judgment actions to
resolve the question of the validity of a premarital, marital, or post marital
agreement at an appropriate stage of the litigation. Given these provisions, we
defer to the expertise of the Committee with regard to the concerns raised in this
comment, and adopt the amendments to Florida Family Law Rule of Procedure
12.270 as proposed.
With regard to the proposed amendments to Florida Family Law Rule of
Procedure 12.285 (Mandatory Disclosure) and Rule 12.350 (Production of
Documents and Things and Entry Upon Land for Inspection and For Other
Purposes), the Family Law Section of The Florida Bar (Section) in its comment
suggested several additional amendments to these rules. In its response to this
comment, the Committee stated that the Section’s suggestions are being addressed
by the Committee in its upcoming three-year-cycle report. In light of this
response, we defer to the Committee and adopt the amendments to these rules as
proposed.
Next, the Committee has proposed amendments to Florida Family Law Rule
of Procedure 12.340 (Interrogatories to Parties) incorporating the provisions of
Florida Rule of Civil Procedure 1.340 (Interrogatories to Parties). Part of this
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proposal incorporates the provisions of Florida Rule of Civil Procedure 1.340(c)
“Option to Produce Records” into Florida Family Law Rule of Procedure 12.340.
Florida Rule of Civil Procedure 1.340(c) states:
When the answer to an interrogatory may be derived or ascertained
from the records (including electronically stored information) of the
party to whom the interrogatory is directed or from an examination,
audit, or inspection of the records or from a compilation, abstract, or
summary based on the records and the burden of deriving or
ascertaining the answer is substantially the same for the party serving
the interrogatory as for the party to whom it is directed, an answer to
the interrogatory specifying the records from which the answer may
be derived or ascertained and offering to give the party serving the
interrogatory a reasonable opportunity to examine, audit, or inspect
the records and to make copies, compilations, abstracts, or summaries
is a sufficient answer. An answer shall be in sufficient detail to permit
the interrogating party to locate and to identify, as readily as can the
party interrogated, the records from which the answer may be derived
or ascertained, or shall identify a person or persons representing the
interrogated party who will be available to assist the interrogating
party in locating and identifying the records at the time they are
produced. If the records to be produced consist of electronically
stored information, the records shall be produced in a form or forms in
which they are ordinarily maintained or in a reasonably usable form or
forms.
One of the comments to this proposal points out that certain standard family law
interrogatories contained in Florida Family Law Rules of Procedure Forms
12.930(b) and (c) expressly state that the interrogated party may comply with the
interrogatory by producing certain records and expresses concern that
incorporating the provisions of Florida Rule of Civil Procedure 1.340(c) would
permit production of records in response to other interrogatories as well. We
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conclude that this is not a valid concern because under current Florida Family Law
Rule of Procedure 12.340, the provisions of Florida Rule of Civil Procedure
1.340(c) are already applicable to family law proceedings.
However, the Committee’s proposal incorporating the provisions of Florida
Rule of Civil Procedure 1.340(c) removes the following language:
or from an examination, audit, or inspection of the records or from a
compilation, abstract, or summary based on the records and the
burden of deriving or ascertaining the answer is substantially the same
for the party serving the interrogatory as for the party to whom it is
directed, an answer to the interrogatory specifying the records from
which the answer may be derived or ascertained and offering to give
the party serving the interrogatory a reasonable opportunity to
examine, audit, or inspect the records and to make copies,
compilations, abstracts, or summaries.
This language is replaced simply with “production of the records in lieu of a
written response is a sufficient answer.” Thus, the requirement that the “burden of
deriving or ascertaining the answer is substantially the same for the party serving
the interrogatory as for the party to whom it is directed” and the requirement that
the answer specify the records from which the answer may be derived or
ascertained and offer to give a reasonable opportunity to examine, audit, or inspect
the records and make copies, compilations, abstracts, or summaries has been
deleted. We conclude that this is a substantive change in the requirements of this
rule. Accordingly, we adopt a modified version of this proposal that includes the
above language.
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The Committee has also proposed several amendments to Florida Family
Law Rule of Procedure 12.610 (Injunctions for Protection Against Domestic,
Repeat, Dating, and Sexual Violence, and Stalking). These amendments would
delete the words “Repeat” and “or Sexual” from the title of subdivision (c)(1)(A)(i)
so that the amended title would read “Domestic or Dating Violence.” The same
amendments are proposed in the body of the subdivision to remove references to
“repeat” and “sexual violence.” Additionally, in the first sentence, the Committee
proposes replacing the phrase “immediate and present” with the term “imminent”
and adding the language “becoming the victim of,” such that the first sentence
would read: “For the injunction for protection to be issued ex parte, it must appear
to the court that an imminent danger of becoming the victim of domestic or dating
violence exists.” The Committee further proposes amending the second sentence to
add the language “and any other matters as provided by section 90.204(4), Florida
Statutes,” to bring to light 2014 statutory amendments to section 90.204, Florida
Statutes.
The Committee also proposes amending subdivision (c)(1)(A)(ii), creating
new language specifically addressing the statutory standards for a temporary
injunction for repeat or sexual violence to be issued ex parte. According to the
Committee, the language of this subdivision closely mirrors the language of
subdivision (c)(1)(A)(i), including containing a reference to section 90.204(4),
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Florida Statutes. Newly numbered subdivision (c)(1)(A)(iii) would then
incorporate the language of existing subdivision (c)(1)(A)(ii), regarding stalking,
with the addition of language to reference section 90.204(4), Florida Statutes, to
bring to light the 2014 statutory amendments to that section.
One of the comments pertaining to this proposal contends that it is in
conflict with section 784.046, Florida Statutes (2016). The plain language of this
statute states:
[w]hen it appears to the court that an immediate and present danger of
violence exists, the court may grant a temporary injunction which may
be granted in an ex parte hearing, pending a full hearing, and may
grant such relief as the court deems proper, including an injunction
enjoining the respondent from committing any acts of violence.
§ 784.046(6)(a), Fla. Stat. (2016).
The comment contends that without explanation, the Committee proposes
replacing “immediate and present danger” with “imminent danger” and proposes
the creation of a new subdivision, which addresses only temporary injunctions for
repeat and sexual violence and replaces the requirement that it must appear to the
court “that an immediate and present danger of violence exists” with the
requirement that “repeat or sexual violence exists.” The comment points out that
section 784.046 does not distinguish between the different forms of injunction for
repeat violence, dating violence, or sexual violence and contends that Florida
Family Law Rule of Procedure 12.610 should not either.
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The comment is correct that the proposed amendments to subdivision
(c)(1)(A) of Florida Family Law Rule of Procedure 12.610 that appear to change
the standard for issuance of a temporary injunction for domestic and dating
violence from “immediate and present danger” of domestic or dating violence to
“imminent danger of becoming the victim of” domestic or dating violence, and that
would separate out sexual and repeat violence from subdivision (c)(1)(A)(i) and
provide yet another standard for issuance of a temporary injunction in those
situations—“that repeat or sexual violence exists”—are inconsistent with statutory
law. Section 741.30(5)(a), Florida Statutes (2016), addresses injunctions for
domestic violence and provides that a temporary injunction may be issued when “it
appears to the court that an immediate and present danger of domestic violence
exists.” Similarly, section 784.046, Florida Statutes (2016), addresses injunctions
for repeat, dating, and sexual violence, and it provides that a temporary injunction
may be issued “when an immediate and present danger of violence exists.”
The Florida Supreme Court Family Law Forms for temporary injunctions
against repeat, sexual, dating, and domestic violence reflect the statutory standard.
Form 12.980(k), Temporary Injunction for Protection Against Repeat Violence,
recites that “[t]he statements made under oath by Petitioner make it appear that
Section 784.046, Florida Statutes, applies to the parties, that Petitioner is a victim
of repeat violence and that an immediate and present danger of repeat violence
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exists to Petitioner or to a member of Petitioner’s family.” Form 12.980(r),
Temporary Injunction for Protection Against Sexual Violence, states that “[t]he
statements made under oath by Petitioner make it appear that Section 784.046,
Florida Statutes, applies to the parties, that Petitioner is a victim of sexual violence
by Respondent and meets the requirements for an injunction established by law,”
i.e., that an immediate and present danger of violence exists, under section
784.046(6)(a), Florida Statutes (2016).
The temporary injunction forms for domestic and dating violence use both
the “imminent danger” language and the “immediate and present danger”
language. Form 12.980(o), Temporary Injunction for Protection Against Dating
Violence, states:
The statements made under oath by Petitioner make it appear
that Section 784.046, Florida Statutes, applies to the parties, that
Petitioner is a victim of dating violence and/or Petitioner has
reasonable cause to believe he or she is in imminent danger of
becoming a victim of an act of dating violence by Respondent, and
that an immediate and present danger of dating violence exists to
Petitioner or to a member of Petitioner's immediate family.
Forms 12.980(c)(1), Temporary Injunction for Protection Against Domestic
Violence with Minor Child(ren), and 12.980(c)(2), Temporary Injunction for
Protection Against Domestic Violence without Minor Child(ren), both state:
The statements made under oath by Petitioner make it appear
that section 741.30, Florida Statutes, applies to the parties. It also
appears that Petitioner is a victim of domestic violence by
Respondent, and/or Petitioner has reasonable cause to believe he/she
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is in imminent danger of becoming a victim of domestic violence by
Respondent, and that there is an immediate and present danger of
domestic violence to Petitioner or persons lawfully with Petitioner.
Given the above, we decline to adopt the proposed amendments to Florida Family
Law Rule of Procedure 12.610.
CONCLUSION
We would like to thank the Family Law Rules Committee for its dedication,
service, and diligent work in proposing the stand-alone set of rules for family law
cases that we adopt here. We also thank the Board of Governors of The Florida
Bar for its participation and input, as well as the valuable input of those who filed
comments in this matter.
Accordingly, the Florida Family Law Rules of Procedure and Florida Family
Law Rules of Procedure Forms are hereby amended as set forth in the appendix to
this opinion. Language added to the rules is indicated by underscoring; deleted
language is shown in struck-through type. The committee notes are offered for
explanation only and are not adopted as an official part of the rules.
The amended forms are fully engrossed and ready for use. The forms may
also be accessed and downloaded from the Florida State Courts’ website at
www.flcourts.org/resources-and-services/court-improvement/problem-solving-
courts/family-courts/family-law-forms.stml. By adoption of the amended forms,
we express no opinion as to their correctness or applicability.
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The amended rules and forms shall become effective immediately upon
release of this opinion.
It is so ordered.
LABARGA, C.J., and PARIENTE, LEWIS, QUINCE, CANADY, and
POLSTON, JJ., concur.
LAWSON, J., did not participate.
THE FILING OF A MOTION FOR REHEARING SHALL NOT ALTER THE
EFFECTIVE DATE OF THESE AMENDMENTS.
Original Proceeding – Florida Family Law Rules
Judge Laurel Moore Lee, Chair, Family Law Rules Committee, Plant City, Florida;
Charles Cole Jeffries, Jr., Past Chair, Family Law Rules Committee, Tampa,
Florida; and John F. Harkness, Jr., Executive Director, and Krys Godwin, Bar Staff
Liaison, The Florida Bar, Tallahassee, Florida,
for Petitioner
Sarah E. Kay, Co-Chair, Rules and Forms Committee, Family Law Section of The
Florida Bar, Sessums Black Caballero Ficarrotta, Tampa, Florida; C. Debra Welch,
Co-Chair, Rules and Forms Committee, Family Law Section of The Florida Bar,
The Law Firm of C. Debra Welch PA, West Palm Beach, Florida; Laura Davis
Smith, Chair, Family Law Section of The Florida Bar, Greene Smith & Associates,
P.A., Coral Gables, Florida; Thomas J. Sasser, Jorge M. Cestero, Peter J.
Trombadore, and Trisha P. Armstrong of Sasser, Cestero & Sasser, P.A., West
Palm Beach, Florida; and Gregory Firestone, Ph.D., Sarasota, Florida,
Responding with Comments
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APPENDIX
RULE 12.005. TRANSITION RULE
These rules shall apply to all family law cases effective January 1, 1996as of
March 16, 2017. Any action taken in a family law case before January 1,
1996March 16, 2017, that conformed to the then-effective rules or statutes
governing family law cases, will be regarded as valid during the pendency of the
litigation.
Commentary
1995 Adoption. This rule provides for an effective date of January 1, 1996,
for these Florida Family Law Rules of Procedure. Under this rule, any action taken
in a family law matter before January 1, 1996, will be regarded as valid during the
pendency of the litigation so long as that action was taken in accordance with the
then-effective rules or statutes governing family law cases. Any action taken after
January 1, 1996, in new or pending family law cases will be governed by these
rules.
RULE 12.010. SCOPE, PURPOSE, AND TITLE
(a) Scope.
(1) These rules apply to all actions concerning family matters,
including injunctions for protection against domestic, repeat, dating, and sexual
violence, and stalking, except as otherwise provided by the Florida Rules of
Juvenile Procedure or the Florida Probate Rules. “Family matters,” “family law
matters,” or “family law cases” as used within these rules include, but are not
limited to, matters arising from dissolution of marriage, annulment, support
unconnected with dissolution of marriage, paternity, child support, an action
involving a parenting plan for a minor child or children (except as otherwise
provided by the Florida Rules of Juvenile Procedure), proceedings for temporary
or concurrent custody of minor children by extended family, adoption, proceedings
for emancipation of a minor, declaratory judgment actions related to premarital,
marital, or postmarital agreements (except as otherwise provided, when applicable,
by the Florida Probate Rules), injunctions for protection against domestic, repeat,
dating, and sexual violence, and stalking, and all proceedings for modification,
enforcement, and civil contempt of these actions.
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(2) The form, content, procedure, and time for pleading in all
special statutory proceedings shall be as prescribed by the statutes governing the
proceeding unless these rules or the Florida Rules of Civil ProcedureJudicial
Administration, where applicable, specifically provide to the contrary. All actions
governed byunder these rules shall also be governed by the Florida Evidence Code,
which shall governapplies in cases where a conflict with these rules may occur.
(b) – (c) [no change]
RULE 12.015. FAMILY LAW FORMS
(a) Forms Adopted as Rules. The forms listed in this rule shall be
adopted by the rulemaking process in Fla. R. Jud. Admin.Florida Rule of Judicial
Administration 2.140. The Family Law Rules Committee of The Florida Bar
shallmay propose amendments to these forms and any associated instructions.
These forms shall be designated “Florida Family Law Rules of Procedure Forms.”
Forms coming under this provision are:
(1) 12.900(a), Disclosure From Nonlawyer;
(2) 12.900(b), Notice of Limited Appearance;
(3) 12.900(c), Consent to Limited Appearance by Attorney;
(4) 12.900(d), Termination of Limited Appearance;
(5) 12.900(e), Acknowledgment of Assistance by Attorney;
(6) 12.900(f), Signature Block for Attorney Making Limited
Appearance;
(7) 12.900(g), Agreement Limiting Representation;
(8) 12.900(h), Notice of Related Cases;
(9) 12.901(a), Petition for Simplified Dissolution of Marriage;
(10) 12.902(b), Family Law Financial Affidavit (Short Form);
(11) 12.902(c), Family Law Financial Affidavit (Long Form);
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(12) 12.902(e), Notice of Filing Child Support Guidelines
Worksheet;
(13) 12.902(f)(3), Marital Settlement Agreement for Simplified
Dissolution of Marriage;
(14) 12.910(a), Summons: Personal Service on an Individual;
(15) 12.911(a), Subpoena for Hearing or Trial (Issued by Clerk);
(16) 12.911(b), Subpoena for Hearing or Trial (Issued by Attorney);
(17) 12.911(c), Subpoena Duces Tecum for Hearing or Trial (Issued
by Clerk);
(18) 12.911(d), Subpoena Duces Tecum for Hearing or Trial (Issued
by Attorney);
(19) 12.911(e), Subpoena for Deposition (Issued by Clerk);
(20) 12.913(b), Affidavit of Diligent Search and Inquiry;
(1621) 12.913(c), Affidavit of Diligent Search;
(1722) 12.920(a), Motion for Referral to General Magistrate;
(1823) 12.920(b), Order of Referral to General Magistrate;
(1924) 12.920(c), Notice of Hearing Before General Magistrate;
(2025) 12.928, Cover Sheet for Family Court Cases;
(2126) 12.930(a), Notice of Service of Standard Family Law
Interrogatories;
(2227) 12.930(b), Standard Family Law Interrogatories for
Original or Enforcement Proceedings;
(2328) 12.930(c), Standard Family Law Interrogatories for
Modification Proceedings;
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(29) 12.930(d), Notice of Service of Answers to Standard Family
Law Interrogatories;
(2430) 12.932, Certificate of Compliance with Mandatory
Disclosure;
(31) 12.975, Notice of Compliance When Constitutional Challenge
is Brought;
(2532) 12.984(a), Order of Referral to Parenting Coordinator;
(33) 12.984(b), Response by Parenting Coordinator;
(34) 12.984(c), Parenting Coordinator Report of an Emergency;
(35) 12.984(d), Parenting Coordinator Request for Status
Conference;
(2636) 12.990(a), Final Judgment of Simplified Dissolution of
Marriage;
(2737) 12.996(a), Income Deduction Order (Non-Title IV-D);
(2838) 12.996(b), Notice to Payor;
(2939) 12.996(c), Notice of Filing Return Receipt; and
(3040) 12.996(d), Florida Addendum to Income Withholding
Order; and
(31) 12.998, Order of Referral to Parenting Coordinator.
(41) 12.999, Final Disposition Form.
(b) [no change]
Commentary
[no change]
RULE 12.020. APPLICABILITY OF FLORIDA RULES OF CIVIL
PROCEDUREDEFINITIONS
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The Florida Rules of Civil Procedure are applicable in all family law matters
except as otherwise provided in these rules. These rules shall govern in cases
where a conflict with the Florida Rules of Civil Procedure may occur. Whenever
the Florida Rules of Civil Procedure apply to family matters, the use of the words
plaintiff, defendant, and complaint within the context of the civil rules shall be
interchangeable, where appropriate, with the words, petitioner, respondent, and
petition, respectivelyFor definitions of family law terms found in these rules, refer
to the Family Law Glossary of Common Terms and Definitions contained in the
General Information for Self-Represented Litigants located at www.flcourts.org.
Commentary
1995 Adoption. To avoid confusion among members of the bar who
practice in both family law and civil law areas, it is intended that as much
uniformity as possible be maintained between the Florida Family Law Rules of
Procedure and the Florida Rules of Civil Procedure. To assist in this effort, the
Florida Supreme Court determined that the Florida Rules of Civil Procedure were
to apply except as set forth herein. Exceptions and additions to the Florida Rules of
Civil Procedure are contained in Florida Family Law Rules of Procedure that are
numbered to correspond to their civil rule counterparts. For example, exceptions to
Florida Rule of Civil Procedure 1.080 are contained in Florida Family Law Rule of
Procedure 12.080.
RULE 12.030. NONVERIFICATION OF PLEADINGS
Except as otherwise provided in these rules, Vverification of pleadings shall
be governed by the Florida Rules of Civil Procedure 1.030Judicial Administration
or applicable statute.
RULE 12.050. WHEN ACTION COMMENCED
Commencement of actions shall be governed by Florida Rule of Civil
Procedure 1.050Every family law matter shall be deemed commenced when the
petition is filed, except that ancillary proceedings shall be deemed commenced
when the writ is issued or the pleading setting forth the claim of the party initiating
the action is filed.
RULE 12.060. TRANSFERS OF ACTIONS
Transfers of actions shall be governed by Florida Rule of Civil Procedure
1.060.
- 22 -
(a) Transfers of Courts. If it should appear at any time that an action is
pending in the wrong court of any county, it may be transferred to the proper court
within the county by the same method as provided by Florida law.
(b) Wrong Venue. When any action is filed placing venue in the wrong
county, the court may transfer the action in the manner provided by Florida law to
the proper court in any county in which it might have been brought in accordance
with the venue statutes. When the venue might have been placed in 2 or more
counties, the person bringing the action may select the county to which the action
is transferred. If no such selection is made, the matter shall be determined by the
court.
(c) Method. The service charge of the clerk of the court to which an
action is transferred under this rule must be paid by the party who commenced the
action within 30 days from the date the order of transfer is entered, subject to
taxation as provided by law when the action is determined. If the service charge is
not paid within the 30 days, the action may be dismissed without prejudice by the
court that entered the order of transfer.
RULE 12.070. PROCESS
(a) Service of Initial Process. Upon the commencement of all family law
actions, including proceedings to modify a final judgment, service of process shall
be as set forth in Florida Rule of Civil Procedure 1.070.Issuance of Summons.
(1) In General. On the commencement of the action, including
proceedings to modify a final judgment, summons or other process authorized by
law must be issued immediately by the clerk or judge under the clerk’s or the
judge’s signature and the seal of the court and delivered for service.
(b) (2) Contents of Summons. TheAll summons, cross-claim
summons, and third-party summons in family law matters shallmust be patterned
after Florida Family Law Rules of Procedure Form 12.910(a) and shallmust
specifically contain the following language:
WARNING: Rule 12.285, Florida Family Law Rules of
Procedure, requires certain automatic disclosure of
documents and information. Failure to comply can result
in sanctions, including dismissal or striking of pleadings.
- 23 -
(b) Service; By Whom Made. Service of process may be made by an
officer authorized by law to serve process, but the court may appoint any
competent person not interested in the action to serve the process. When so
appointed, the person serving process must make proof of service by affidavit
promptly and in any event within the time during which the person served must
respond to the process. Failure to make proof of service will not affect the validity
of the service. When any process is returned not executed or returned improperly
executed for any respondent, the party causing its issuance must be entitled to such
additional process against the unserved party as is required to effect service.
(c) Service; Numerous Respondents. If there is more than 1 respondent,
the clerk or judge must issue as many writs of process against the several
respondents as may be directed by the petitioner or the petitioner’s attorney.
(d) Service by Publication. Service of process by publication may be
made as provided by statute.
(e) Constructive Service.
(1) For constructive service of process on the legal father in any
case or proceeding to establish paternity which would result in termination of the
legal father’s parental rights, the petitioner shallmust file an affidavit of diligent
search and inquiry that conforms with Florida Family Law Rules of Procedure
Form 12.913(c). If the legal father cannot be located, he shallmust be served with
process by publication in the manner provided by chapter 49, Florida Statutes. The
notice shallmust be published in the county where the legal father was last known
to have resided. The clerk of the circuit court shallmust mail a copy of the notice to
the legal father at his last known address.
(2) For constructive service of process in any case or proceeding
involving parental responsibility, custody, or time-sharing with a minor child, the
petitioner shallmust file an affidavit of diligent search and inquiry that conforms
with Florida Family Law Rules of Procedure Form 12.913(c). If the responding
party cannot be located, the party shallmust be served with process by publication
in the manner provided by chapter 49, Florida Statutes. The clerk of the circuit
court shallmust mail a copy of the notice to the party’s last known address.
(3) For constructive service of process in all other cases, an
affidavit of diligent search and inquiry in substantial conformity with Florida
Family Law Rules of Procedure Form 12.913(b), must be filed.
- 24 -
(df) Domestic, Repeat, Dating, and Sexual Violence, and Stalking
Proceedings. This rule does not govern service of process in proceedings for
injunctions for protection against domestic, repeat, dating, and sexual violence, and
stalking.
(g) Copies of Initial Pleading for Persons Served. At the time of
personal service of process a copy of the initial pleading must be delivered to the
party on whom service is made. The date and hour of service must be endorsed on
the original process and all copies of it by the person making the service. The party
seeking to effect personal service must furnish the person making service with the
necessary copies. When the service is made by publication, copies of the initial
pleadings must be furnished to the clerk and mailed by the clerk with the notice of
action to all parties whose addresses are stated in the initial pleading or sworn
statement.
(h) Service of Orders. If personal service of a court order is to be made,
the original order must be filed with the clerk, who must certify or verify a copy of
it without charge. The person making service must use the certified copy instead of
the original order in the same manner as original process in making service.
(i) Fees; Service of Pleadings. The statutory compensation for making
service shall not be increased by the simultaneous delivery or mailing of the copy
of the initial pleading in conformity with this rule.
(j) Pleading Basis. When service of process is to be made under statutes
authorizing service on nonresidents of Florida, it is sufficient to plead the basis for
service in the language of the statute without pleading the facts supporting service.
(k) Service of Process by Mail. A respondent may accept service of
process by mail.
(1) Acceptance of service of a petition by mail does not waive any
objection to the venue or to the jurisdiction of the court over the person of the
respondent.
(2) A petitioner may notify any respondent of the commencement
of the action and request that the respondent waive service of a summons. The
notice and request must:
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(A) be in writing and be addressed directly to the respondent,
if an individual, or to an officer or managing or general agent of the respondent, or
other agent authorized by appointment or law to receive service of process;
(B) be dispatched by certified mail, return receipt requested;
(C) be accompanied by a copy of the petition and must
identify the court in which it has been filed;
(D) inform the respondent of the consequences of compliance
and of failure to comply with the request;
(E) state the date on which the request is sent;
(F) allow the respondent 20 days from the date on which the
request is received to return the waiver, or, if the address of the respondent is
outside of the United States, 30 days from the date on which it is received to return
the waiver; and
(G) provide the respondent with an extra copy of the notice
and request, including the waiver, as well as a prepaid means of compliance in
writing.
(3) If a respondent fails to comply with a request for waiver within
the time provided herein, the court may impose the costs subsequently incurred in
effecting service on the respondent unless good cause for the failure is shown.
(4) A respondent who, before being served with process, timely
returns a waiver so requested is not required to respond to the petition until 60 days
after the date the respondent received the request for waiver of service. For
purposes of computing any time prescribed or allowed by these rules, service of
process will be deemed effected 20 days before the time required to respond to the
petition.
(5) When the petitioner files a waiver of service with the court, the
action must proceed, except as provided in subdivision (k)(4) above, as if a
summons and petition had been served at the time of filing the waiver, and no
further proof of service shall be required.
(l) Summons; Time Limit. If service of the initial process and initial
pleading is not made upon a respondent within 120 days after filing of the initial
- 26 -
pleading directed to that respondent, the court, on its own initiative after notice or
on motion, must direct that service be effected within a specified time or must
dismiss the action without prejudice or drop that respondent as a party; provided
that if the petitioner shows good cause or excusable neglect for the failure, the
court shall extend the time for service for an appropriate period. When a motion for
leave to amend with the attached proposed amended petition is filed, the 120-day
period for service of amended petitions on the new party or parties must begin
upon the entry of an order granting leave to amend. A dismissal under this
subdivision shall not be considered a voluntary dismissal or operate as an
adjudication on the merits under rule 12.420(a)(1).
RULE 12.071. CONSTITUTIONAL CHALLENGE TO STATE
STATUTE OR COUNTY OR MUNICIPAL CHARTER, ORDINANCE, OR
FRANCHISE; NOTICE BY PARTY
Constitutional challenges to a state statute or county or municipal charter,
ordinance, or franchise, and the notice requirements of such challenges shall be
governed by Florida Rule of Civil Procedure 1.071.
A party that files a pleading, written motion, or other document drawing into
question the constitutionality of a state statute or a county or municipal charter,
ordinance, or franchise must promptly
(a) file a notice of constitutional question stating the question and
identifying the document that raises it; and
(b) serve the notice and the pleading, written motion, or other document
drawing into question the constitutionality of a state statute or a county or
municipal charter, ordinance, or franchise on the Attorney General or the state
attorney of the judicial circuit in which the action is pending, by either certified or
registered mail.
Service of the notice and pleading, written motion, or other document does
not require joinder of the Attorney General or the state attorney as a party to the
action.
RULE 12.080. SERVICE OF PLEADINGS AND FILING OF
DOCUMENTS
(a) Service.
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(1) Family Law Actions Generally. Service of pleadings and
documents after commencement of all family law actions, except proceedings for
injunctions for protection against domestic, repeat, dating, and sexual violence, and
stalking, shall beis as set forth in Florida Rule of Judicial Administration 2.516,
except that rule 2.516 shall also applyies to service on the party during the
attorney’s limited appearance as provided in rule 12.040(f) and must be expanded
as set forth in subdivisions (b) and (c) to include additional requirements for
service of recommended orders and for service on defaulted parties.
(2) Domestic, Repeat, Dating, and Sexual Violence, and
Stalking Actions. Service of pleadings and documents regarding proceedings for
injunctions against domestic, repeat, dating, and sexual violence, and stalking shall
beis governed by Florida Family Law Rule of Procedurerule 12.610, where it is in
conflict with this rule.
(b) Service and Preparation of Orders and Judgments. A copy of all
orders or judgments involving family law matters, except proceedings for
injunctions for protection against domestic, repeat, dating, and sexual violence, and
stalking, shallmust be transmitted by the court or under its direction to all parties at
the time of entry of the order or judgment. The court may require that
recommended orders, orders, or judgments be prepared by a party. If the court
requires that a party prepare the recommended order, order, or judgment, the party
shallmust furnish the court with stamped, addressed envelopes to all parties for
service of the recommended order, order, or judgment. The court may also require
that any proposed recommended order, order, or judgment that is prepared by a
party be furnished to all parties no less than 24 hours before submission to the
court of the recommended order, order, or judgment.
(c) Defaulted Parties. No service need be made on parties against whom
a default has been entered, except that:
(1) Pleadings asserting new or additional claims against defaulted
parties shallmust be served in the manner provided for service of summons
contained in Florida Rule of Civil Procedure 1.070rule 12.070.
(2) Notice of final hearings or trials and court orders shallmust be
served on defaulted parties in the manner provided for service of pleadings and
documents contained in Florida Rule of Judicial Administration 2.516.
(3) Final judgments shallmust be served on defaulted parties as set
forth in Florida Rule of Judicial Administration 2.516(h).
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Commentary
[no change]
Committee Notes
[no change]
RULE 12.090. TIME
(a) Computation. Computation of time shall be governed by Florida
Rule of Judicial Administration 2.514. Other aspects of time shall be governed by
Florida Rules of Civil Procedure 1.090(b)–(d).
(b) Enlargement. When an act is required or allowed to be done at or
within a specified time by order of court, by these rules, or by notice given
thereunder, for cause shown the court at any time in its discretion (1) with or
without notice, may order the period enlarged if a request is made before the
expiration of the period originally prescribed or as extended by a previous order, or
(2) on motion made and notice after the expiration of the specified period, may
permit the act to be done when failure to act was the result of excusable neglect.
However, the court may not extend the time for making a motion for new trial, for
rehearing, or to alter or amend a judgment, making a motion for relief from a
judgment under rule 12.540(b), taking an appeal or filing a petition for certiorari,
or making a motion for a directed verdict.
(c) For Motions. A copy of any written motion which may not be heard
ex parte and a copy of the notice of the hearing on the written motion must be
served a reasonable time before the time specified for the hearing.
Committee Notes
[no change]
RULE 12.100. PLEADINGS; AND MOTIONS; AND CAPTIONS
Pleadings and motions shall be governed by Florida Rule of Civil Procedure
1.100, except that
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(a) the party opening or reopening a case under these rules shall file with
the clerk of the circuit court Florida Family Law Rules of Procedure Form 12.928,
Cover Sheet for Family Court Cases; and
(b) the requirement in rule 1.100(c)(3) that parties file a final disposition
form with the clerk if the action is settled without a court order or judgment being
entered or if the action is dismissed by the parties, shall not apply to proceedings
governed by these rules.
(a) Pleadings. There must be a petition or, when so designated by a
statute or rule, a complaint, and a response or answer to it; a response or answer to
a counterclaim denominated as such; an answer to a crossclaim if the answer
contains a crossclaim; a third-party petition if a person who was not an original
party is summoned as a third-party respondent or defendant; and a third-party
response or answer if a third-party complaint is served. If a response or answer
contains an affirmative defense and the opposing party seeks to avoid it, the
opposing party shall file a reply containing the avoidance. In a post-judgment case,
there are a supplemental petition and a response or an answer and a counter-
supplemental petition and a response or an answer to it, if applicable. In those
cases in which there is a related civil action that is not otherwise specifically
addressed in the Family Law Rules of Procedure, then the Rules of Civil Procedure
governs those pleadings. No other pleadings are allowed unless otherwise provided
by law.
(b) Motions. An application to the court for an order must be by motion
which must be made in writing unless made during a hearing or trial, must state
with particularity the grounds therefor, and must set forth the relief or order sought.
The requirement of writing is fulfilled if the motion is stated in a written notice of
the hearing of the motion. All notices of hearings must specify each motion or
other matter to be heard.
(c) Caption.
(1) Every pleading, motion, order, judgment, or other document
must have a caption containing the name of the court, the file number, and except
for in rem proceedings, the name of the first party on each side with an appropriate
indication of other parties, and a designation identifying the party filing it and its
nature or the nature of the order, as the case may be. In any in rem proceeding,
every pleading, motion, order, judgment, or other document must have a caption
containing the name of the court, the file number, the style “In re” (followed by the
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name or general description of the property), and a designation of the person or
entity filing it and its nature or the nature of the order. All documents filed in the
action must be styled in such a manner as to indicate clearly the subject matter of
the document and the party requesting or obtaining relief. Specific captions for
family law cases are as follows:
(A) Matters Arising From Dissolution of Marriage.
(i) Original Dissolution of Marriage: In re the
Marriage of .........., Husband and .........., Wife, regardless of who files first and
whether there is a counter-petition.
(ii) Modification of Final Judgment of Dissolution of
Marriage: In the Former Marriage of .........., Former Husband, and .........., Former
Wife, regardless of who files first and whether there is a supplemental counter-
petition.
(B) Annulment.
(i) Original Annulment: In re the Marriage of ..........,
Husband and .........., Wife, regardless of who files first and whether a counter-
petition for annulment or any other pleading in the alternative for dissolution of
marriage is filed.
(ii) Supplemental or Enforcement Proceedings. The
caption must remain the same, regardless of whether an annulment or a dissolution
of marriage was ultimately granted in the original proceeding.
(C) Support Unconnected With Dissolution of Marriage: In
re the Marriage of .........., Husband and .........., Wife, regardless of who files first
and whether there is a counter-petition.
(D) Paternity.
(i) Original Paternity Proceeding when Paternity is
not Admitted Before Filing: .........., Putative Father, and .........., Mother, regardless
of who files first and whether there is a counter-petition.
(ii) Original Paternity Proceedings when Paternity has
been Admitted Before Filing: .........., Father, and .........., Mother, regardless of who
files first and whether there is a counter-petition.
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(iii) Paternity Modification: .........., Father, and ..........,
Mother, regardless of who files the supplemental petition and whether there is a
supplemental counter-petition.
(iv) Disestablishment of Paternity Proceeding: ..........,
Father, and .........., Mother.
(E) Proceedings for Temporary or Concurrent Custody of
Minor Children by Extended Family: In the interest of .........., Child(ren).
(F) Adoption.
(i) In re: Termination of Parental Rights for Proposed
Adoption of .....(name on child’s birth certificate)....., Minor Child(ren).
(ii) In re: Adoption of .....(name to be given
child(ren))....., Adoptee(s).
(iii) Stepparent Adoption Proceedings: In re: the
Adoption of .....(name to be given child(ren))....., Adoptee(s).
(G) Proceedings for Emancipation of a Minor: In re:
Emancipation of .........., Minor.
(H) Title IV-D Cases: State, Dept. of Revenue, Child
Support Program ex rel. .........., Petitioner, and .........., Respondent.
(I) In all supplemental proceedings for modification or
actions to enforce, the caption must remain the same as indicated in this rule.
(2) Trial level nomenclature used in the caption should be simple,
clear, constant, and, to the extent possible, unchanging, regardless of who files a
petition, counter-petition, or a supplemental action. The trial level nomenclature
expressed herein is intended to meaningfully identify the parties by role, such as
Wife, Husband, Former Wife, Former Husband, Putative Father, Father, and
Mother. Information as to who files a pleading or motion should be part of the
document rather than in the caption of the case.
(3) A cover sheet for family court cases (form 12.928) must be
completed and filed with the clerk at the time a complaint or petition is filed by the
party initiating the action. If the cover sheet is not filed, the clerk must accept the
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complaint or petition for filing; but all proceedings in the action must be abated
until a properly executed cover sheet is completed and filed. The clerk must
complete the cover sheet for a party appearing pro se.
(4) A final disposition form (form 12.999) must be filed with the
clerk at the time of the filing of the order or judgment which disposes of the action.
If the action is settled without a court order or judgment being entered, or
dismissed by the parties, the plaintiff or petitioner must immediately file a final
disposition form with the clerk. The clerk must complete the final disposition form
for a party appearing pro se, or when the action is dismissed by court order for lack
of prosecution under rule 12.420(d).
(d) Notice of Related Cases. A notice of related cases, form 12.900(h),
must be filed in conformity with Florida Rule of Judicial Administration 2.545(d).
Commentary
[no change]
RULE 12.110. GENERAL RULES OF PLEADING
The general rules of pleading in Florida Rule of Civil Procedure 1.110 shall
apply to these proceedings except that proceedings to modify a final judgment in a
family law matter shall be initiated only pursuant to rule 1.110(h) and not by
motion.
(a) Forms of Pleadings. Forms of action and technical forms for seeking
relief and of pleas, pleadings, or motions are abolished.
(b) Claims for Relief. A pleading which sets forth a claim for relief,
whether an original petition, counterpetition, counterclaim, crossclaim, or third-
party claim, must state a cause of action and must contain
(1) a short and plain statement of the grounds on which the court’s
jurisdiction depends, unless the court already has jurisdiction and the pleading
needs no new grounds of jurisdiction to support it,
(2) a short and plain statement of both the relief requested and the
ultimate facts showing that the pleader is entitled to that relief, and
- 33 -
(3) a demand for judgment for the relief to which the pleader
deems himself or herself entitled.
Relief in the alternative or of several different types may be demanded.
Every petition shall be considered to pray for general relief.
(c) The Answer. In the answer a pleader must state in short and plain
terms the pleader’s answers to each claim asserted and must admit or deny the
allegations on which the adverse party relies. If the pleader is without knowledge,
he or she must so state and such statement operates as a denial. Denial must fairly
meet the substance of the allegations denied. When a pleader intends in good faith
to deny only a part of an allegation, the pleader must specify so much of it as is
true and must deny the remainder. Unless the pleader intends in good faith to
controvert all of the allegations of the preceding pleading, the pleader may make
denials as specific denials of designated allegations or may generally deny all of
the allegations except such designated allegations as the pleader expressly admits.
However, when the pleader does so intend to controvert all of its allegations,
including allegations of the grounds on which the court’s jurisdiction depends, the
pleader may do so by general denial.
(d) Affirmative Defenses. In the answer a party must state affirmatively
any matter constituting an avoidance or affirmative defense or any other
affirmative defense as allowed by law. When a party has mistakenly designated a
defense as a counterclaim or a counterclaim as a defense, the court, on terms if
justice so requires, must treat the pleading as if there had been a proper
designation. Affirmative defenses appearing on the face of a prior pleading may be
asserted as grounds for a motion or defense under rule 12.140, provided this shall
not limit amendments under rule 12.190 even if such grounds are sustained.
(e) Effect of Failure to Deny. Allegations in a pleading to which a
responsive pleading is required, other than those as to the relief requested, are
admitted when not denied in the responsive pleading. Allegations in a pleading to
which no responsive pleading is required or permitted must be taken as denied or
avoided.
(f) Separate Statements. All allegations of claim or defense must be
made in consecutively numbered paragraphs, the contents of each of which must
be limited as far as practicable to a statement of a single set of circumstances, and a
paragraph may be referred to by number in all subsequent pleadings. Each claim
founded upon a separate transaction or occurrence and each defense other than
- 34 -
denials must be stated in a separate count or response when a separation facilitates
the clear presentation of the matter set forth.
(g) Joinder of Causes of Action; Consistency. A pleader may set up in
the same action as many claims or causes of action or defenses in the same right as
the pleader has, and claims for relief may be stated in the alternative if separate
items make up the cause of action, or if 2 or more causes of action are joined. A
party may also set forth 2 or more statements of a claim or defense alternatively,
either in 1 count or defense or in separate counts or defenses. When 2 or more
statements are made in the alternative and 1 of them, if made independently, would
be sufficient, the pleading is not made insufficient by the insufficiency of 1 or
more of the alternative statements. A party may also state as many separate claims
or defenses as that party has, regardless of consistency and whether based on legal
or equitable grounds or both. All pleadings must be construed so as to do
substantial justice.
(h) Subsequent Pleadings. When the nature of an action permits
pleadings subsequent to final judgment and the jurisdiction of the court over the
parties has not terminated, the initial pleading subsequent to final judgment must
be designated a supplemental petition. The action must then proceed in the same
manner and time as though the supplemental petition were the initial pleading in
the action, including the issuance of any needed process. Proceedings to modify a
final judgment must be initiated only under this subdivision and not by motion.
This subdivision does not apply to proceedings that may be initiated by motion
under these rules.
Commentary
[no change]
RULE 12.120. PLEADING SPECIAL MATTERS
Pleading of special matters shall be governed by Florida Rule of Civil
Procedure 1.120.
(a) Capacity. Unless required by statute, it is not necessary to allege the
capacity of a party to sue or be sued, the authority of a party to sue or be sued in a
representative capacity, or the legal existence of an organized association of
persons that is made a party, except to the extent required to show the jurisdiction
of the court. The initial pleading served on behalf of a minor party must
specifically allege the age of the minor party. When a party desires to raise an issue
- 35 -
as to the legal existence of any party, the capacity of any party to sue or be sued, or
the authority of a party to sue or be sued in a representative capacity, that party
must do so by specific negative allegation(s) which must include such supporting
particulars as are peculiarly within the pleader’s knowledge.
(b) Fraud; Mistake; Condition of the Mind. In all allegations of fraud
or mistake, the circumstances constituting fraud or mistake must be stated with
such particularity as the circumstances may permit. Malice, intent, knowledge,
mental attitude, and other condition of mind of a person may be alleged generally.
(c) Conditions Precedent. In pleading the performance or occurrence of
conditions precedent, it is sufficient to allege generally that all conditions
precedent have been performed or have occurred. A denial of performance or
occurrence must be made specifically and with particularity.
(d) Official Document or Act. In pleading an official document or
official act it is sufficient to allege that the document was issued or the act done in
compliance with law.
(e) Judgment or Decree. In pleading a judgment or decree of a domestic
or foreign court, a judicial or quasi-judicial tribunal, or a board or officer, it is
sufficient to allege the judgment or decree without setting forth matter showing
jurisdiction to render it.
(f) Time and Place. For the purpose of testing the sufficiency of a
pleading, allegations of time and place are material and must be considered like all
other allegations of material matter.
(g) Special Damage. When items of special damage are claimed, they
must be specifically stated.
RULE 12.140. DEFENSESRESPONSES
Defenses shall be governed by Florida Rule of Civil Procedure 1.140.
(a) When Presented.
(1) Unless a different time is prescribed in a statute of Florida, a
respondent must serve a response within 20 days after service of original process
and the initial pleading on the respondent, or not later than the date fixed in a
notice by publication. The petitioner must serve a response to a counterpetition
- 36 -
within 20 days after service of the counterpetition. If a reply is required, the reply
must be served within 20 days after service of the response. A party served with a
pleading stating a crosspetition against that party must serve a response to it within
20 days after service on that party.
(2) The service of a motion under this rule, except a motion for
judgment on the pleadings or a motion to strike under subdivision (f), alters these
periods of time so that if the court denies the motion or postpones its disposition
until the trial on the merits, the responsive pleadings must be served within 10 days
after notice of the court’s action or, if the court grants a motion for a more definite
statement, the responsive pleadings must be served within 10 days after service of
the more definite statement unless a different time is fixed by the court in either
case.
(3) If the court permits or requires an amended or responsive
pleading or a more definite statement, the pleading or statement must be served
within 10 days after notice of the court’s action. Responses to the pleadings or
statements must be served within 10 days of service of such pleadings or
statements.
(b) How Presented. Every defense in law or fact to a claim for relief in a
pleading must be asserted in the responsive pleading, if one is required, but the
following responses may be made by motion at the option of the pleader:
(1) lack of jurisdiction over the subject matter;
(2) lack of jurisdiction over the person;
(3) improper venue;
(4) insufficiency of process;
(5) insufficiency of service of process;
(6) failure to state a cause of action; and
(7) failure to join indispensable parties.
A motion making any of these responses must be made before pleading if a
further pleading is permitted. The grounds on which any of the enumerated
responses are based and the substantial matters of law intended to be argued must
- 37 -
be stated specifically and with particularity in the responsive pleading or motion.
Any ground not stated must be deemed to be waived except any ground showing
that the court lacks jurisdiction of the subject matter may be made at any time. No
response or objection is waived by being joined with other responses or objections
in a responsive pleading or motion. If a pleading sets forth a claim for relief to
which the adverse party is not required to serve a responsive pleading, the adverse
party may assert any defense in law or fact to that claim for relief at the trial,
except that the objection of failure to state a legal defense in an answer or reply
must be asserted by motion to strike the defense within 20 days after service of the
answer or reply.
(c) Motion for Judgment on the Pleadings. After the pleadings are
closed, but within such time as not to delay the trial, any party may move for
judgment on the pleadings.
(d) Preliminary Hearings. The responses in subdivisions (b)(1)–(b)(7),
whether made in a pleading or by motion, and the motion for judgment in
subdivision (c) must be heard and determined before trial on application of any
party unless the court orders that the hearing and determination will be deferred
until the trial.
(e) Motion for More Definite Statement. If a pleading to which a
responsive pleading is permitted is so vague or ambiguous that a party cannot
reasonably be required to frame a responsive pleading, that party may move for a
more definite statement before interposing a responsive pleading. The motion must
point out the defects complained of and the details desired. If the motion is granted
and the order of the court is not obeyed within 10 days after notice of the order or
such other time as the court may fix, the court may strike the pleading to which the
motion was directed or make such order as it deems just.
(f) Motion to Strike. A party may move to strike or the court may strike
redundant, immaterial, impertinent, or scandalous matter from any pleading at any
time.
(g) Consolidation of Responses. A party who makes a motion under this
rule may join with it the other motions herein provided for and then available to
that party. If a party makes a motion under this rule but omits from it any responses
or objections then available to that party that this rule permits to be raised by
motion, that party shall not thereafter make a motion based on any of the responses
or objections omitted, except as provided in subdivision (h)(2).
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(h) Waiver of Responses.
(1) A party waives all responses and objections that the party does
not present either by motion under subdivisions (b), (e), or (f) or, if the party has
made no motion, in a responsive pleading except as provided in subdivision (h)(2).
(2) The responses of failure to state a cause of action or a legal
defense or to join an indispensable party may be raised by motion for judgment on
the pleadings or at the trial on the merits in addition to being raised either in a
motion under subdivision (b) or in the answer or reply. The defense of lack of
jurisdiction of the subject matter may be raised at any time.
RULE 12.150. SHAM PLEADINGS
Sham pleadings shall be governed by Florida Rule of Civil Procedure 1.150.
(a) Motion to Strike. If a party deems any pleading or part of it filed by
another party to be a sham, that party may move to strike the pleading or part of it
before the cause is set for trial and the court must hear the motion, taking evidence
of the respective parties, and if the motion is sustained, the pleading to which the
motion is directed must be stricken. Default and summary judgment on the merits
may be entered in the discretion of the court or the court may permit additional
pleadings to be filed for good cause shown.
(b) Contents of Motion. The motion to strike must be verified and must
set forth fully the facts on which the movant relies and may be supported by
affidavit.
RULE 12.160. MOTIONS
Motions shall be governed by Florida Rule of Civil Procedure 1.160.
All motions for the issuance of process and to enforce and execute
judgments, for entering defaults, and for such other proceedings in the clerk’s
office not requiring an order of court must be deemed grantable as of course by the
clerk. The clerk’s action may be suspended, altered, or rescinded by the court upon
good cause shown.
RULE 12.170. COUNTERCLAIMSPETITIONS AND CROSSCLAIMS
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Counterclaims and crossclaims shall be governed by Florida Rule of Civil
Procedure 1.170, except that service of a crossclaim on a party who has appeared
in the action, as provided in rule 1.170(g), shall be made pursuant to Florida Rule
of Judicial Administration 2.516(b).
(a) Compulsory Counterpetitions. A pleading must state as a
counterpetition any claim which at the time of serving the pleading the pleader has
against any opposing party, provided it arises out of the transaction or occurrence
that is the subject matter of the opposing party’s claim and does not require for its
adjudication the presence of third parties over whom the court cannot acquire
jurisdiction. But the pleader need not state a claim if (1) at the time the action was
commenced the claim was the subject of another pending action, or (2) the
opposing party brought suit upon that party’s claim by attachment or other process
by which the court did not acquire jurisdiction to render a personal judgment on
the claim and the pleader is not stating a counterpetition under this rule.
(b) Permissive Counterpetition. A pleading may state as a
counterpetition any claim against an opposing party not arising out of the
transaction or occurrence that is the subject matter of the opposing party’s claim.
(c) Counterclaim Exceeding Opposing Claim. A counterclaim may or
may not diminish or defeat the recovery sought by the opposing party. It may claim
relief exceeding in amount or different in kind from that sought in the pleading of
the opposing party.
(d) Counterclaim Against the State. These rules shall not be construed
to enlarge beyond the limits established by law the right to assert counterclaims or
to claim credits against the state or any of its subdivisions or other governmental
organizations of the state subject to suit or against a municipal corporation or
against an officer, agency, or administrative board of the state.
(e) Counterclaim Maturing or Acquired after Pleading. A claim
which matured or was acquired by the pleader after serving the pleading may be
presented as a counterpetition by supplemental pleading with the permission of the
court.
(f) Omitted Counterclaim or Crossclaim. When a pleader fails to set
up a counterclaim or crossclaim through oversight, inadvertence, or excusable
neglect, or when justice or equity requires, the pleader may set up the counterclaim
or crossclaim by amendment with leave of the court.
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(g) Crossclaim Against Co-Party. A pleading may state as a crossclaim
any claim by one party against a co-party arising out of the transaction or
occurrence that is the subject matter of either the original action or a counterclaim
within the original action, or relating to any property that is the subject matter of
the original action. The crossclaim may include a claim that the party against
whom it is asserted is or may be liable to the crossclaimant for all or part of a claim
asserted in the action against the crossclaimant. Service of a crossclaim on a party
who has appeared in the action must be made under rule 12.080. Service of a
crossclaim against a party who has not appeared in the action must be made in the
manner provided for service of summons.
(h) Additional Parties May Be Brought In. When the presence of
parties other than those to the original action is required to grant complete relief in
the determination of a counterclaim or crossclaim, they must be named in the
counterpetition or crossclaim and be served with process and will be parties to the
action thereafter if jurisdiction of them can be obtained and their joinder will not
deprive the court of jurisdiction of the action. Rules 12.250(b) and (c) apply to
parties brought in under this subdivision.
(i) Separate Trials; Separate Judgment. If the court orders separate
trials, a judgment on a counterclaim or crossclaim may be rendered when the court
has jurisdiction to do so even if a claim of the opposing party has been dismissed
or otherwise disposed of.
Committee Notes
[no change]
RULE 12.180. THIRD-PARTY PRACTICE
Third-party practice shall be governed by Florida Rule of Civil Procedure
1.180.
(a) When Available. At any time after commencement of the action a
respondent may have a summons and petition served on a person not a party to the
action who is or may be liable to the respondent for all or part of the petitioner’s
claim against the respondent, and may also assert any other claim that arises out of
the transaction or occurrence that is the subject matter of the petitioner’s claim.
The respondent need not obtain leave of court if the respondent files the third-party
complaint not later than 20 days after the respondent serves the original answer.
Otherwise, the respondent must obtain leave on motion and notice to all parties to
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the action. The person served with the summons and third-party complaint, the
third-party respondent, must make defenses to the respondent’s claim as provided
in rules 12.110 and 12.140 and counterpetitions against the respondent and
crossclaims against other third-party respondents as provided in rule 12.170. The
third-party respondent may assert against the petitioner any defenses that the
respondent has to the petitioner’s claim.
(b) Additional Claims. The third-party respondent may also assert any
claim against the petitioner arising out of the transaction or occurrence that is the
subject matter of the petitioner’s claim against the respondent. The petitioner may
assert any claim against the third-party respondent arising out of the transaction or
occurrence that is the subject matter of the petitioner’s claim against the
respondent, and the third-party respondent must assert a defense as provided in
rules 12.110 and 12.140 and counterpetitions and crossclaims as provided in rule
12.170. Any party may move to strike the third-party claim or for its severance or
separate trial. A third-party respondent may proceed under this rule against any
person not a party to the action who is or may be liable to the third-party
respondent for all or part of the claim made in the action against the third-party
respondent.
(c) When Petitioner May Bring in Third Party. When a counterpetition
is asserted against the petitioner, the petitioner may bring in a third party under
circumstances which would entitle a respondent to do so under this rule.
RULE 12.190. AMENDED AND SUPPLEMENTAL PLEADINGS
Amended and supplemental pleadings shall be governed by Florida Rule of
Civil Procedure 1.190.
(a) Amendments. A party may amend a pleading once as a matter of
course at any time before a responsive pleading is served or, if the pleading is one
to which no responsive pleading is permitted and the action has not been placed on
the trial calendar, may so amend it at any time within 20 days after it is served.
Otherwise a party may amend a pleading only by leave of court or by written
consent of the adverse party. If a party files a motion to amend a pleading, the
party must attach the proposed amended pleading to the motion. Leave of court
shall be given freely when justice so requires. A party must plead in response to an
amended pleading within 10 days after service of the amended pleading unless the
court otherwise orders.
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(b) Amendments to Conform with the Evidence. When issues not
raised by the pleadings are tried by express or implied consent of the parties, they
will be treated in all respects as if they had been raised in the pleadings. Such
amendment of the pleadings as may be necessary to cause them to conform to the
evidence and to raise these issues may be made upon motion of any party at any
time, even after judgment, but failure so to amend will not affect the result of the
trial of these issues. If the evidence is objected to at the trial on the ground that it is
not within the issues made by the pleadings, the court may allow the pleadings to
be amended to conform with the evidence and must do so freely when the merits of
the cause are more effectually presented thereby and the objecting party fails to
satisfy the court that the admission of such evidence will prejudice the objecting
party in maintaining an action or defense upon the merits.
(c) Relation Back of Amendments. When the claim or defense asserted
in the amended pleading arose out of the conduct, transaction, or occurrence set
forth or attempted to be set forth in the original pleading, the amendment must
relate back to the date of the original pleading.
(d) Amendments Generally. At any time in furtherance of justice, upon
such terms as may be just, the court may permit any process, proceeding, pleading,
or record to be amended or material supplemental matter to be set forth in an
amended or supplemental pleading. At every stage of the action the court must
disregard any error or defect in the proceedings that does not affect the substantial
rights of the parties.
RULE 12.201. COMPLEX LITIGATION
Florida Rule of Civil Procedure 1.201 shall not apply in proceedings
governed by these rules.
RULE 12.210. PARTIES
Parties to an action filed under the Florida Family Law Rules of Procedure
shall be governed by Florida Rule of Civil Procedure 1.210, except that rule 1.210
shall not be read to require that a child is an indispensable party for a dissolution of
marriage or action involving a parenting plan for a minor child or children.
(a) Parties Generally. Every action may be prosecuted in the name of the
real party in interest, but a personal representative, administrator, guardian, trustee
of an express trust, a party with whom or in whose name a contract has been made
for the benefit of another, or a party expressly authorized by statute may sue in that
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person’s own name without joining the party for whose benefit the action is
brought. All persons having an interest in any subject of the action may be joined.
Any person may at any time be made a party if that person’s presence is necessary
or proper for a complete determination of the cause.
(b) Minors, Incapacitated, or Incompetent Persons. When a minor,
incapacitated, or incompetent person has a representative, such as a guardian or
other like fiduciary, the representative may appear in the action on behalf of the
minor, incapacitated, or incompetent person. A minor, incapacitated, or
incompetent person who does not have a duly appointed representative may appear
by next friend or by a guardian ad litem. The court shall have the discretion to
appoint a guardian ad litem and/or attorney ad litem for a minor, incapacitated, or
incompetent person not otherwise represented in an action or shall make such other
order as it deems proper for the protection of the minor, incapacitated, or
incompetent person.
(c) Child as Party. This rule shall not be read to require that a child is an
indispensable party for a dissolution of marriage or action involving a parenting
plan.
RULE 12.230. INTERVENTIONS
Interventions shall be governed by Florida Rule of Civil Procedure 1.230.
Anyone claiming an interest in pending litigation may, at any time, be
permitted to assert a right by intervention, but the intervention must be in
subordination to, and in recognition of, the propriety of the main proceeding,
unless otherwise ordered by the court in its discretion.
RULE 12.240. INTERPLEADER
Interpleaders shall be governed by Florida Rule of Civil Procedure 1.240.
Persons having claims against the petitioner may be joined as parties and
required to interplead when their claims are such that the petitioner is or may be
exposed to double or multiple liability. It is not ground for objection to the joinder
that the claim of the several claimants or the titles on which their claims depend do
not have common origin or are not identical but are adverse to and independent of
one another, or it is alleged that the petitioner is not liable in whole or in part to
any or all of the claimants. A party exposed to similar liability may obtain such
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interpleader by way of crossclaim or counterpetition. The provisions of this rule
supplement and do not in any way limit the joinder of parties otherwise permitted.
RULE 12.250. MISJOINDER AND NONJOINDER OF PARTIES
Misjoinder and nonjoinder of parties shall be governed by Florida Rule of
Civil Procedure 1.250.
(a) Misjoinder. Misjoinder of parties is not a ground for dismissal of an
action. Any claim against a party may be severed and proceeded with separately.
(b) Dropping Parties. Parties may be dropped by an adverse party in the
manner provided for voluntary dismissal in rule 12.420(a)(1) subject to the
exception stated in that rule. If notice of lis pendens has been filed in the action
against a party so dropped, the notice of dismissal must be recorded and cancels
the notice of lis pendens without the necessity of a court order. Parties may be
dropped by order of court on its own initiative or the motion of any party at any
stage of the action on such terms as are just.
(c) Adding Parties. Parties may be added once as a matter of course
within the same time that pleadings can be so amended under rule 12.190(a). If
amendment by leave of court or stipulation of the parties is permitted, parties may
be added in the amended pleading without further order of court. Parties may be
added by order of court on its own initiative or on motion of any party at any stage
of the action and on such terms as are just.
RULE 12.260. SURVIVOR; SUBSTITUTION OF PARTIES
Survivors and the substitution of parties shall be governed by Florida Rule
of Civil Procedure 1.260.
(a) Death.
(1) If a party dies and the claim is not thereby extinguished, the
court may order substitution of the proper parties. The motion for substitution may
be made by any party or by the successors or representatives of the deceased party
and, together with the notice of hearing, must be served on all parties as provided
in rule 12.080 and on persons not parties in the manner provided for the service of
a summons. If a party dies while a proceeding is pending and that party’s rights
survive, the court may order the substitution of the proper party on its own motion
or that of any interested person.
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(2) In the event of the death of one or more of the petitioners or of
one or more of the respondents in an action in which the right sought to be
enforced survives only to the surviving petitioners or only against the surviving
respondents, the action does not abate. The death shall be suggested on the record
and the action proceeds in favor of or against the surviving parties.
(b) Incapacity. If a party becomes incapacitated, the court may allow the
action to be continued by or against that person’s representative.
(c) Transfer of Interest. In case of any transfer of interest, the action
may be continued by or against the original party, unless the court upon motion
directs the person to whom the interest is transferred to be substituted in the action
or joined with the original party. Service of the motion must be made as provided
in subdivision (a).
(d) Public Officers; Death or Separation from Office.
(1) When a public officer is a party to an action in an official
capacity and during its pendency dies, resigns, or otherwise ceases to hold office,
the action does not abate and the officer’s successor is automatically substituted as
a party. Proceedings following the substitution must be in the name of the
substituted party, but any misnomer not affecting the substantial rights of the
parties must be disregarded. An order of substitution may be entered at any time,
but the omission to enter such an order does not affect the substitution.
(2) When a public officer sues or is sued in an official capacity, the
officer may be described as a party by the official title rather than by name but the
court may require the officer’s name to be added.
RULE 12.270. RELATED CASES AND CONSOLIDATION; SEPARATE
TRIALS
Consolidation or separation of trials shall be governed by Florida Rule of
Civil Procedure 1.270.
Related cases and consolidation of cases are governed by Florida Rule of
Judicial Administration 2.545.
RULE 12.280. GENERAL PROVISIONS GOVERNING DISCOVERY
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Florida Rule of Civil Procedure 1.280 shall govern general provisions
concerning discovery in family law matters with the following exceptions:
(a) Discovery Methods. Parties may obtain discovery by 1 or more of the
following methods: depositions upon oral examination or written questions; written
interrogatories; production of documents or things or permission to enter on land
or other property for inspection and other purposes; physical and mental
examinations; and requests for admission. Unless the court orders otherwise and
under subdivision (d), the frequency of use of these methods is not limited, except
as provided in rules 12.200, 12.340, and 12.370.
(b) Redaction of Personal Information. All filings of discovery
information shallmust comply with Florida Rule of Judicial Administration 2.425.
The court shall havehas the authority to impose sanctions for violation of this rule.
(c) Scope of Discovery. Unless otherwise limited by order of the court in
accordance with these rules, the scope of discovery is as follows:
(1) In General. Parties may obtain discovery regarding any matter,
not privileged, that is relevant to the subject matter of the pending action, whether
it relates to the claim or defense of the party seeking discovery or the claim or
defense of any other party, including the existence, description, nature, custody,
condition, and location of any books, documents, or other tangible things and the
identity and location of persons having knowledge of any discoverable matter. It is
not grounds for objection that the information sought will be inadmissible at the
trial if the information sought appears reasonably calculated to lead to the
discovery of admissible evidence.
(2) Indemnity Agreements. A party may obtain discovery of the
existence and contents of any agreement under which any person may be liable to
satisfy part or all of a judgment that may be entered in the action or to indemnify or
to reimburse a party for payments made to satisfy the judgment.
(3) Electronically Stored Information. A party may obtain
discovery of electronically stored information in accordance with these rules.
(4) Trial Preparation: Materials. Subject to the provisions of
subdivision (c)(5), a party may obtain discovery of documents and tangible things
otherwise discoverable under subdivision (c)(1) and prepared in anticipation of
litigation or for trial by or for another party or by or for that party’s representative,
including that party’s attorney, consultant, or agent, only on a showing that the
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party seeking discovery has need of the materials in the preparation of the case and
is unable without undue hardship to obtain the substantial equivalent of the
materials by other means. In ordering discovery of the materials when the required
showing has been made, the court must protect against disclosure of the mental
impressions, conclusions, opinions, or legal theories of an attorney or other
representative of a party concerning the litigation. Without the required showing a
party may obtain a copy of a statement concerning the action or its subject matter
previously made by that party. On request without the required showing a person
not a party may obtain a copy of a statement concerning the action or its subject
matter previously made by that person. If the request is refused, the person may
move for an order to obtain a copy. The provisions of rule 12.380(a)(4) apply to
the award of expenses incurred as a result of making the motion. For purposes of
this subdivision, a statement previously made is a written statement signed or
otherwise adopted or approved by the person making it, or a stenographic,
mechanical, electrical, or other recording or transcription of it that is a substantially
verbatim recital of an oral statement by the person making it and
contemporaneously recorded.
(5) Trial Preparation: Experts. Discovery of facts known and
opinions held by experts, otherwise discoverable under the provisions of
subdivision (c)(1) and acquired or developed in anticipation of litigation or for
trial, may be obtained as follows:
(A) (i) By interrogatories a party may require any other
party to identify each person whom the other party expects to call as an expert
witness at trial and to state the subject matter on which the expert is expected to
testify, and to state the substance of the facts and opinions to which the expert is
expected to testify and a summary of the grounds for each opinion.
(ii) Any person disclosed by interrogatories or
otherwise as a person expected to be called as an expert witness at trial may be
deposed in accordance with rule 12.390 without motion or order of court.
(iii) A party may obtain the following discovery
regarding any person disclosed by interrogatories or otherwise as a person
expected to be called as an expert witness at trial:
a. The scope of employment in the pending
case and the compensation for such service.
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b. The expert’s general litigation experience,
including the percentage of work performed for petitioners and respondents.
c. The identity of other cases, within a
reasonable time period, in which the expert has testified by deposition or at trial.
d. An approximation of the portion of the
expert’s involvement as an expert witness, which may be based on the number of
hours, percentage of hours, or percentage of earned income derived from serving
as an expert witness; however, the expert must not be required to disclose his or
her earnings as an expert witness or income derived from other services.
An expert may be required to produce financial and business
records only under the most unusual or compelling circumstances and may not be
compelled to compile or produce nonexistent documents. On motion, the court
may order further discovery by other means, subject to such restrictions as to scope
and other provisions under subdivision (c)(5)(C) concerning fees and expenses as
the court may deem appropriate.
(B) A party may discover facts known or opinions held by an
expert who has been retained or specially employed by another party in
anticipation of litigation or preparation for trial and who is not expected to be
called as a witness at trial, only as provided in rule 12.360(b) or on a showing of
exceptional circumstances under which it is impracticable for the party seeking
discovery to obtain facts or opinions on the same subject by other means.
(C) Unless manifest injustice would result, the court must
require that the party seeking discovery pay the expert a reasonable fee for time
spent in responding to discovery under subdivisions (c)(5)(A) and (c)(5)(B); and
concerning discovery from an expert obtained under subdivision (c)(5)(A) the
court may require, and concerning discovery obtained under subdivision (c)(5)(B)
must require, the party seeking discovery to pay the other party a fair part of the
fees and expenses reasonably incurred by the latter party in obtaining facts and
opinions from the expert.
(D) As used in these rules an expert shall be an expert
witness as defined in rule 12.390.
(6) Claims of Privilege or Protection of Trial Preparation
Materials. When a party withholds information otherwise discoverable under
these rules by claiming that it is privileged or subject to protection as trial
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preparation material, the party must make the claim expressly and must describe
the nature of the documents, communications, or things not produced or disclosed
in a manner that, without revealing information itself privileged or protected, will
enable other parties to assess the applicability of the privilege or protection.
(d) Protective Orders. On motion by a party or by the person from
whom discovery is sought, and for good cause shown, the court in which the action
is pending may make any order to protect a party or person from annoyance,
embarrassment, oppression, or undue burden or expense that justice requires,
including one or more of the following:
(1) that the discovery not be had;
(2) that the discovery may be had only on specified terms and
conditions, including a designation of the time or place;
(3) that the discovery may be had only by a method of discovery
other than that selected by the party seeking discovery;
(4) that certain matters not be inquired into, or that the scope of the
discovery be limited to certain matters;
(5) that the discovery be conducted with no one present except
persons designated by the court;
(6) that a deposition after being sealed be opened only by order of
the court;
(7) that a trade secret or other confidential research, development,
or commercial information not be disclosed or be disclosed only in a designated
way; and
(8) that the parties simultaneously file specified documents or
information enclosed in sealed envelopes to be opened as directed by the court.
If the motion for a protective order is denied in whole or in part, the court
may, on such terms and conditions as are just, order that any party or person
provide or permit discovery. The provisions of rule 12.380(a)(4) apply to the
award of expenses incurred in relation to the motion.
(e) Limitations on Discovery of Electronically Stored Information.
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(1) A person may object to discovery of electronically stored
information from sources that the person identifies as not reasonably accessible
because of burden or cost. On motion to compel discovery or for a protective
order, the person from whom the discovery is sought must show that the
information sought or the format requested is not reasonably accessible because of
undue burden or cost. If that showing is made, the court may nonetheless order the
discovery from such sources or in such formats if the requesting party shows good
cause. The court may specify conditions of the discovery, including ordering that
some or all of the expenses incurred by the person from whom discovery is sought
be paid by the party seeking discovery.
(2) In determining any motion involving discovery of electronically
stored information, the court must limit the frequency or extent of discovery
otherwise allowed by these rules if it determines that
(A) the discovery sought is unreasonably cumulative or
duplicative, or can be obtained from another source or in another manner that is
more convenient, less burdensome, or less expensive; or
(B) the burden or expense of the discovery outweighs its
likely benefit, considering the needs of the case, the amount in controversy, the
parties’ resources, the importance of the issues at stake in the action, and the
importance of the discovery in resolving the issues.
(f) Sequence and Timing of Discovery. Except as provided in
subdivision (c)(5) or unless the court upon motion for the convenience of parties
and witnesses and in the interest of justice orders otherwise, methods of discovery
may be used in any sequence, and the fact that a party is conducting discovery,
whether by deposition or otherwise, does not delay any other party’s discovery.
(bg) Supplementing of Responses. A party is under a duty to amend a
prior response or disclosure if the party:
(1) obtains information or otherwise determines that the prior
response or disclosure was incorrect when made; or
(2) obtains information or otherwise determines that the prior
response or disclosure, although correct when made, is no longer materially true or
complete.
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(ch) Time for Serving Supplemental Responses. Any supplemental
response served pursuant tounder this rule shallmust be served as soon as possible
after discovery of the incorrect information or change, but in no case shallmay the
supplemental response be served later than 24 hours before any applicable hearing
absent a showing of good cause.
(di) Documents Considered ConfidentialConfidentiality of Records. A
determination as to the confidentiality of a court record shallmust be made in
accordance with Florida Rule of Judicial Administration 2.420. Records found to
be confidential under Florida Rule of Judicial Administration 2.420 must be sealed
on request of a party.
(e) Sealing of Records. Records found to be confidential under Florida
Rule of Judicial Administration 2.420 shall be sealed on request of a party.
(j) Court Filing of Documents and Discovery. Information obtained
during discovery must not be filed with the court until such time as it is filed for
good cause. The requirement of good cause is satisfied only where the filing of the
information is allowed or required by another applicable rule of procedure or by
court order.
Commentary
[no change]
RULE 12.281. INADVERTENT DISCLOSURE OF PRIVILEGED
MATERIALS
Inadvertent disclosure of privileged materials shall be governed by Florida
Rule of Civil Procedure 1.285.
(a) Assertion of Privilege as to Inadvertently Disclosed Materials.
Any party, person, or entity, after inadvertent disclosure of any materials under
these rules, may thereafter assert any privilege recognized by law as to those
materials. This right exists without regard to whether the disclosure was made
under formal demand or informal request. To assert the privilege, the party, person,
or entity must, within 10 days of actually discovering the inadvertent disclosure,
serve written notice of the assertion of privilege on the party to whom the materials
were disclosed. The notice must specify with particularity the materials as to which
the privilege is asserted, the nature of the privilege asserted, and the date on which
the inadvertent disclosure was actually discovered.
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(b) Duty of the Party Receiving Notice of an Assertion of Privilege. A
party receiving notice of an assertion of privilege under subdivision (a) must
promptly return, sequester, or destroy the materials specified in the notice, as well
as any copies of the material. The party receiving the notice must also promptly
notify any other party, person, or entity to whom it has disclosed the materials of
the fact that the notice has been served and of the effect of this rule. That party
must also take reasonable steps to retrieve the materials disclosed. Nothing herein
affects any obligation under Rules Regulating the Florida Bar 4-4.4(b).
(c) Right to Challenge Assertion of Privilege. Any party receiving a
notice made under subdivision (a) has the right to challenge the assertion of
privilege. The grounds for the challenge may include, but are not limited to, the
following:
(1) The materials in question are not privileged.
(2) The disclosing party, person, or entity lacks standing to assert
the privilege.
(3) The disclosing party, person, or entity has failed to serve timely
notice under this rule.
(4) The circumstances surrounding the production or disclosure of
the materials warrant a finding that the disclosing party, person, or entity has
waived its assertion that the material is protected by a privilege.
Any party seeking to challenge the assertion of privilege must do so by
serving notice of its challenge on the party, person, or entity asserting the privilege.
Notice of the challenge must be served within 20 days of service of the original
notice given by the disclosing party, person, or entity. The notice of the recipient’s
challenge must specify the grounds for the challenge. Failure to serve timely notice
of challenge is a waiver of the right to challenge.
(d) Effect of Determination that Privilege Applies. When an order is
entered determining that materials are privileged or that the right to challenge the
privilege has been waived, the court must direct what is to be done with the
materials and any copies so as to preserve all rights of appellate review. The
recipient of the materials must also give prompt notice of the court’s determination
to any other party, person, or entity to whom it had disclosed the materials.
RULE 12.285. MANDATORY DISCLOSURE
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(a) Application.
(1) Scope. This rule shall applyapplies to all proceedings within the
scope of these rules except proceedings involving adoption, simplified dissolution,
enforcement, contempt, injunctions for protection against domestic, repeat, dating,
or sexual violence, or stalking, and uncontested dissolutions when the respondent
is served by publication and does not file an answer. Additionally, no financial
affidavit or other documents shall be required under this rule from a party seeking
attorneys’ fees, suit money, or costs, if the basis for the request is solely under
section 57.105, Florida Statutes, or any successor statute. Except for the provisions
as to financial affidavits and child support guidelines worksheets, any portion of
this rule may be modified by order of the court or agreement of the parties.
(2) Original and Duplicate Copies. Unless otherwise agreed by
the parties or ordered by the court, copies of documents required under this rule
may be produced in lieu of originals. Originals, when available, shallmust be
produced for inspection upon request. Parties shall not be required to serve
duplicates of documents previously served.
(3) Documents Not to be Filed with Court; Sanctions.
(A) Except for the financial affidavit and child support
guidelines worksheet, no documents produced under this rule shall be filed in the
court file without first obtaining a court order.
(B) References to account numbers and personal identifying
information to be filed in the court file shall beare governed by Florida Rule of
Judicial Administration 2.425.
(C) Sanctions shall beare governed by Florida Rule of Civil
Procedure 1.280(f)rule 12.380.
(b) Time for Production of Documents.
(1) Temporary Financial Relief Hearings. Any document
required under this rule in any temporary financial relief proceeding shallmust be
served on the other party for inspection and copying as follows.
(A) The party seeking relief shallmust serve the required
documents on the other party with the notice of temporary financial hearing, unless
the documents have been served under subdivision (b)(2) of this rule.
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(B) The responding party shallmust serve the required
documents on the party seeking relief on or before 5:00 p.m., 2 business days
before the day of the temporary financial relief hearing if served by delivery or 7
days before the day of the temporary financial relief hearing if served by mail or e-
mail, unless the documents have been received previously by the party seeking
relief under subdivision (b)(2) of this rule. A responding party shallmust be given
no less than 12 days to serve the documents required under this rule, unless
otherwise ordered by the court. If the 45-day period for exchange of documents
provided for in subdivision (b)(2) of this rule will occur before the expiration of
the 12 days, the provisions of subdivision (b)(2) control.
(2) Initial and Supplemental Proceedings. Any document
required under this rule for any initial or supplemental proceeding shallmust be
served on the other party for inspection and copying within 45 days of service of
the initial pleading on the respondent.
(c) Exemption from Requirement to File and Serve Financial
Affidavit. The parties shallare not be required to file and serve a financial affidavit
under subdivisions (d) and (e) if they are seeking a simplified dissolution of
marriage under rule 12.105, they have no minor children, have no support issues,
and have filed a written settlement agreement disposing of all financial issues, or if
the court lacks jurisdiction to determine any financial issues.
(d) Disclosure Requirements for Temporary Financial Relief. In any
proceeding for temporary financial relief heard within 45 days of the service of the
initial pleading or within any extension of the time for complying with mandatory
disclosure granted by the court or agreed to by the parties, the following
documents shallmust be served on the other party:
(1) A financial affidavit in substantial conformity with Florida
Family Law Rules of Procedure Form 12.902(b) if the party’s gross annual income
is less than $50,000, or Florida Family Law Rules of Procedure Form 12.902(c) if
the party’s gross annual income is equal to or more than $50,000. This requirement
cannot be waived by the parties. The affidavit must also be filed with the court.
(2) All federal and state income tax returns, gift tax returns, and
intangible personal property tax returns filed by the party or on the party’s behalf
for the past year. A party may file a transcript of the tax return as provided by
Internal Revenue Service Form 4506 T in lieu of his or her individual federal
income tax return for purposes of a temporary hearing.
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(3) IRS forms W-2, 1099, and K-1 for the past year, if the income
tax return for that year has not been prepared.
(4) Pay stubs or other evidence of earned income for the 3 months
prior tobefore service of the financial affidavit.
(e) Parties’ Disclosure Requirements for Initial or Supplemental
Proceedings. A party shallmust serve the following documents in any proceeding
for an initial or supplemental request for permanent financial relief, including, but
not limited to, a request for child support, alimony, equitable distribution of assets
or debts, or attorneys’ fees, suit money, or costs:
(1) A financial affidavit in substantial conformity with Florida
Family Law Rules of Procedure Form 12.902(b) if the party’s gross annual income
is less than $50,000, or Florida Family Law Rules of Procedure Form 12.902(c) if
the party’s gross annual income is equal to or more than $50,000, which
requirement cannot be waived by the parties. The financial affidavits must also be
filed with the court. A party may request, by using the Standard Family Law
Interrogatories, or the court on its own motion may order, a party whose gross
annual income is less than $50,000 to complete Florida Family Law Rules of
Procedure Form 12.902(c).
(2) All federal and state income tax returns, gift tax returns, and
intangible personal property tax returns filed by the party or on the party’s behalf
for the past 3 years.
(3) IRS forms W-2, 1099, and K-1 for the past year, if the income
tax return for that year has not been prepared.
(4) Pay stubs or other evidence of earned income for the 3 months
prior tobefore service of the financial affidavit.
(5) A statement by the producing party identifying the amount and
source of all income received from any source during the 3 months preceding the
service of the financial affidavit required by this rule if not reflected on the pay
stubs produced.
(6) All loan applications and financial statements prepared or used
within the 12 months preceding service of that party’s financial affidavit required
by this rule, whether for the purpose of obtaining or attempting to obtain credit or
for any other purpose.
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(7) All deeds within the last 3 years, all promissory notes within
the last 12 months, and all present leases, in which the party owns or owned an
interest, whether held in the party’s name individually, in the party’s name jointly
with any other person or entity, in the party’s name as trustee or guardian for any
other person, or in someone else’s name on the party’s behalf.
(8) All periodic statements from the last 3 months for all checking
accounts, and from the last 12 months for all other accounts (for example, savings
accounts, money market funds, certificates of deposit, etc.), regardless of whether
or not the account has been closed, including those held in the party’s name
individually, in the party’s name jointly with any other person or entity, in the
party’s name as trustee or guardian for any other person, or in someone else’s
name on the party’s behalf.
(9) All brokerage account statements in which either party to this
action held within the last 12 months or holds an interest including those held in
the party’s name individually, in the party’s name jointly with any person or entity,
in the party’s name as trustee or guardian for any other person, or in someone
else’s name on the party’s behalf.
(10) The most recent statement for any profit sharing, retirement,
deferred compensation, or pension plan (for example, IRA, 401(k), 403(b), SEP,
KEOGH, or other similar account) in which the party is a participant or alternate
payee and the summary plan description for any retirement, profit sharing, or
pension plan in which the party is a participant or an alternate payee. (The
summary plan description must be furnished to the party on request by the plan
administrator as required by 29 U.S.C. § 1024(b)(4).)
(11) The declarations page, the last periodic statement, and the
certificate for all life insurance policies insuring the party’s life or the life of the
party’s spouse, whether group insurance or otherwise, and all current health and
dental insurance cards covering either of the parties and/or their dependent
children.
(12) Corporate, partnership, and trust tax returns for the last 3 tax
years if the party has an ownership or interest in a corporation, partnership, or trust
greater than or equal to 30%.
(13) All promissory notes for the last 12 months, all credit card and
charge account statements and other records showing the party’s indebtedness as of
the date of the filing of this action and for the last 3 months, and all present lease
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agreements, whether owed in the party’s name individually, in the party’s name
jointly with any other person or entity, in the party’s name as trustee or guardian
for any other person, or in someone else’s name on the party’s behalf.
(14) All written premarital or marital agreements entered into at any
time between the parties to this marriage, whether before or during the marriage.
Additionally, in any modification proceeding, each party shallmust serve on the
opposing party all written agreements entered into between them at any time since
the order to be modified was entered.
(15) All documents and tangible evidence supporting the producing
party’s claim that an asset or liability is nonmarital, for enhancement or
appreciation of nonmarital property, or for an unequal distribution of marital
property. The documents and tangible evidence produced shallmust be for the time
period from the date of acquisition of the asset or debt to the date of production or
from the date of the marriage, if based on premarital acquisition.
(16) Any court orders directing a party to pay or receive spousal or
child support.
(f) Duty to Supplement Disclosure; Amended Financial Affidavit.
(1) Parties have a continuing duty to supplement documents
described in this rule, including financial affidavits, whenever a material change in
their financial status occurs.
(2) If an amended financial affidavit or an amendment to a
financial affidavit is filed, the amending party shallmust also serve any
subsequently discovered or acquired documents supporting the amendments to the
financial affidavit.
(g) [no change]
(h) Extensions of Time for Complying with Mandatory Disclosure. By
agreement of the parties, the time for complying with mandatory disclosure may be
extended. Either party may also file, at least 5 days before the due date, a motion to
enlarge the time for complying with mandatory disclosure. The court shallmust
grant the request for good cause shown.
(i) Objections to Mandatory Automatic Disclosure. Objections to the
mandatory automatic disclosure required by this rule shall be served in writing at
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least 5 days prior tobefore the due date for the disclosure or the objections shall be
deemed waived. The filing of a timely objection, with a notice of hearing on the
objection, automatically stays mandatory disclosure for those matters within the
scope of the objection. For good cause shown, the court may extend the time for
the filing of an objection or permit the filing of an otherwise untimely objection.
The court shallmust impose sanctions for the filing of meritless or frivolous
objections.
(j) Certificate of Compliance. All parties subject to automatic
mandatory disclosure shallmust file with the court a certificate of compliance,
Florida Family Law Rules of Procedure Form 12.932, identifying with particularity
the documents which have been delivered and certifying the date of service of the
financial affidavit and documents by that party. The party shallmust swear or
affirm under oath that the disclosure is complete, accurate, and in compliance with
this rule, unless the party indicates otherwise, with specificity, in the certificate of
compliance.
(k) Child Support Guidelines Worksheet. If the case involves child
support, the parties shallmust file with the court at or prior tobefore a hearing to
establish or modify child support a Child Support Guidelines Worksheet in
substantial conformity with Florida Family Law Rules of Procedure Form
12.902(e). This requirement cannot be waived by the parties.
(l ) Place of Production.
(1) Unless otherwise agreed by the parties or ordered by the court,
all production required by this rule shall takes place in the county where the action
is pending and in the office of the attorney for the party receiving production.
Unless otherwise agreed by the parties or ordered by the court, if a party does not
have an attorney or if the attorney does not have an office in the county where the
action is pending, production shall takes place in the county where the action is
pending at a place designated in writing by the party receiving production, served
at least 5 days before the due date for production.
(2) If venue is contested, on motion by a party the court shallmust
designate the place where production will occur pending determination of the
venue issue.
(m) [no change]
Commentary
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[no change]
Committee Notes
[no change]
RULE 12.290. DEPOSITIONS BEFORE ACTION OR PENDING
APPEAL
Depositions before an action or pending an appeal shall be governed by
Florida Rule of Civil Procedure 1.290.
(a) Before Action.
(1) Petition. A person who desires to perpetuate that person’s own
testimony or that of another person regarding any matter that may be cognizable in
any court of this state may file a verified petition in the circuit court in the county
of the residence of any expected adverse party. The petition must:
(A) be titled in the name of the petitioner; and
(B) show:
(i) that the petitioner expects to be a party to an action
cognizable in a court of Florida, but is presently unable to bring it or cause it to be
brought,
(ii) the subject matter of the expected action and the
petitioner’s interest in it,
(iii) the facts which the petitioner desires to establish by
the proposed testimony and the petitioner’s reasons for desiring to perpetuate it,
(iv) the names or a description of the persons the
petitioner expects will be adverse parties and their addresses so far as known, and
(v) the names and addresses of the persons to be
examined and the substance of the testimony that the petitioner expects to elicit
from each; and must ask for an order authorizing the petitioner to take the
deposition of the persons to be examined named in the petition for the purpose of
perpetuating their testimony.
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(2) Notice and Service. The petitioner must serve a notice on each
person named in the petition as an expected adverse party, together with a copy of
the petition, stating that the petitioner will apply to the court at a time and place
named therein for an order described in the petition. At least 20 days before the
date of hearing the notice must be served either within or without the county in the
manner provided by law for service of summons, but if such service cannot with
due diligence be made on any expected adverse party named in the petition, the
court may make an order for service by publication or otherwise, and must appoint
an attorney for persons not served in the manner provided by law for service of
summons who will represent them, and if they are not otherwise represented, will
cross-examine the deponent.
(3) Order and Examination. If the court is satisfied that the
perpetuation of the testimony may prevent a failure or delay of justice, it must
make an order designating or describing the persons whose depositions may be
taken and specifying the subject matter of the examination and whether the
deposition shall be taken upon oral examination or written interrogatories. The
deposition may then be taken in accordance with these rules and the court may
make orders in accordance with the requirements of these rules. For the purpose of
applying these rules to depositions for perpetuating testimony, each reference to
the court in which the action is pending shall be deemed to refer to the court in
which the petition for deposition was filed.
(4) Use of Deposition. A deposition taken under this rule may be
used in any action involving the same subject matter subsequently brought in any
court in accordance with rule 12.330.
(b) Pending Appeal. If an appeal has been taken from a judgment of any
court or before the taking of an appeal if the time therefor has not expired, the
court in which the judgment was rendered may allow the taking of the depositions
of witnesses to perpetuate their testimony for use in the event of further
proceedings in the court. In such case the party who desires to perpetuate the
testimony may make a motion for leave to take the deposition on the same notice
and service as if the action was pending in the court. The motion must show (1) the
names and addresses of persons to be examined and the substance of the testimony
which the movant expects to elicit from each, and (2) the reason for perpetuating
their testimony. If the court finds that the perpetuation of the testimony is proper to
avoid a failure or delay in justice, it may make an order allowing the deposition to
be taken and may make orders of the character provided for by these rules, and
thereupon the deposition may be taken and used in the same manner and under the
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same conditions as are prescribed in these rules for depositions taken in actions
pending in the court.
(c) Perpetuation by Action. This rule does not limit the power of a court
to entertain an action to perpetuate testimony.
RULE 12.300. PERSONS BEFORE WHOM DEPOSITIONS MAY BE
TAKEN
Provisions regarding who may take depositions shall be governed by Florida
Rule of Civil Procedure 1.300.
(a) Persons Authorized. Depositions may be taken before any notary
public or judicial officer or before any officer authorized by the statutes of Florida
to take acknowledgments or proof of executions of deeds or by any person
appointed by the court in which the action is pending.
(b) In Foreign Countries. In a foreign country, depositions may be taken
(1) on notice before a person authorized to administer oaths in the place in which
the examination is held, either by the law thereof or by the law of Florida or of the
United States, (2) before a person commissioned by the court, and a person so
commissioned shall have the power by virtue of the commission to administer any
necessary oath and take testimony, or (3) pursuant to a letter of request. A
commission or a letter of request must be issued on application and notice and on
terms that are just and appropriate. It is not requisite to the issuance of a
commission or a letter of request that the taking of the deposition in any other
manner is impracticable or inconvenient, and both a commission and a letter of
request may be issued in proper cases. A notice or commission may designate the
person before whom the deposition is to be taken either by name or descriptive
title. A letter of request may be addressed “To the Appropriate Authority in
.....(name of country)......” Evidence obtained in response to a letter of request need
not be excluded merely for the reason that it is not a verbatim transcript or that the
testimony was not taken under oath or any similar departure from the requirements
for depositions taken within Florida under these rules.
(c) Selection by Stipulation. If the parties so stipulate in writing,
depositions may be taken before any person at any time or place upon any notice
and in any manner and when so taken may be used like other depositions.
(d) Persons Disqualified. Unless so stipulated by the parties, no
deposition may be taken before a person who is a relative, employee, attorney, or
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counsel of any of the parties, is a relative or employee of any of the parties’
attorneys or counsel, or is financially interested in the action.
RULE 12.310. DEPOSITIONS UPON ORAL EXAMINATION
Depositions upon oral examination shall be governed by Florida Rule of
Civil Procedure 1.310.
(a) When Depositions May Be Taken. After commencement of the
action any party may take the testimony of any person, including a party, by
deposition upon oral examination. Leave of court, granted with or without notice,
must be obtained only if the petitioner seeks to take a deposition within 30 days
after service of the process and initial pleading on any respondent, except that
leave is not required (1) if a respondent has served a notice of taking deposition or
otherwise sought discovery, or (2) if special notice is given as provided in
subdivision (b)(2). The attendance of witnesses may be compelled by subpoena as
provided in rule 12.410. The deposition of a person confined in prison may be
taken only by leave of court on such terms as the court prescribes.
(b) Notice; Method of Taking; Production at Deposition.
(1) A party desiring to take the deposition of any person upon oral
examination must give reasonable notice in writing to every other party to the
action. The notice must state the time and place for taking the deposition and the
name and address of each person to be examined, if known, and, if the name is not
known, a general description sufficient to identify the person or the particular class
or group to which the person belongs. If a subpoena duces tecum is to be served on
the person to be examined, the designation of the materials to be produced under
the subpoena must be attached to or included in the notice.
(2) Leave of court is not required for the taking of a deposition by
petitioner if the notice states that the person to be examined is about to go out of
the state and will be unavailable for examination unless a deposition is taken
before expiration of the 30-day period under subdivision (a). If a party shows that
when served with notice under this subdivision that party was unable through the
exercise of diligence to obtain counsel to represent the party at the taking of the
deposition, the deposition may not be used against that party.
(3) For cause shown the court may enlarge or shorten the time for
taking the deposition.
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(4) Any deposition may be recorded by videotape without leave of
the court or stipulation of the parties, provided the deposition is taken in
accordance with this subdivision.
(A) Notice. A party intending to videotape a deposition must
state in the notice that the deposition is to be videotaped and must give the name
and address of the operator. Any subpoena served on the person to be examined
must state the method or methods for recording the testimony.
(B) Court Reporter. Videotaped depositions must also be
stenographically recorded by a certified court reporter, unless all parties agree
otherwise.
(C) Procedure. At the beginning of the deposition, the officer
before whom it is taken must, on camera: (i) identify the style of the action, (ii)
state the date, and (iii) swear in the witness.
(D) Custody of Tape and Copies. The attorney for the party
requesting the videotaping of the deposition must take custody of and be
responsible for the safeguarding of the videotape, must permit the viewing of it by
the opposing party, and, if requested, must provide a copy of the videotape at the
expense of the party requesting the copy.
(E) Cost of Videotaped Depositions. The party requesting the
videotaping bears the initial cost of videotaping.
(5) The notice to a party deponent may be accompanied by a
request made in compliance with rule 12.350 for the production of documents and
tangible things at the taking of the deposition. The procedure of rule 12.350 applies
to the request. Rule 12.351 provides the exclusive procedure for obtaining
documents or things by subpoena from nonparties without deposing the custodian
or other person in possession of the documents.
(6) In the notice a party may name as the deponent a public or
private corporation, a partnership or association, or a governmental agency, and
designate with reasonable particularity the matters on which examination is
requested. The organization so named must designate one or more officers,
directors, or managing agents, or other persons who consent to do so, to testify on
its behalf and may state the matters on which each person designated will testify.
The persons so designated must testify about matters known or reasonably
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available to the organization. This subdivision does not preclude taking a
deposition by any other procedure authorized in these rules.
(7) On motion the court may order that the testimony at a
deposition be taken by telephone. The order may prescribe the manner in which the
deposition will be taken. A party may also arrange for a stenographic transcription
at that party’s own initial expense.
(8) Any minor subpoenaed for testimony has the right to be
accompanied by a parent, guardian, guardian ad litem, or attorney ad litem at all
times during the taking of testimony notwithstanding the invocation of the rule of
sequestration of section 90.616, Florida Statutes, except on a showing that the
presence of a parent or guardian is likely to have a material, negative impact on the
credibility or accuracy of the minor’s testimony, or that the interests of the parent
or guardian are in actual or potential conflict with the interests of the minor. The
provisions of this subdivision do not alter the requirements of rule 12.407 that a
court order must be obtained before a minor child may be deposed or brought to a
deposition.
(c) Examination and Cross-Examination; Record of Examination;
Oath; Objections. Examination and cross-examination of witnesses may proceed
as permitted at the trial. The officer before whom the deposition is to be taken must
put the witness on oath and must personally, or by someone acting under the
officer’s direction and in the officer’s presence, record the testimony of the
witness, except that when a deposition is being taken by telephone, the witness
must be sworn by a person present with the witness who is qualified to administer
an oath in that location. The testimony must be taken stenographically or recorded
by any other means ordered in accordance with subdivision (b)(4). If requested by
one of the parties, the testimony must be transcribed at the initial cost of the
requesting party and prompt notice of the request must be given to all other parties.
All objections made at the time of the examination to the qualifications of the
officer taking the deposition, the manner of taking it, the evidence presented, or the
conduct of any party, and any other objection to the proceedings must be noted by
the officer during the deposition. Any objection during a deposition must be stated
concisely and in a nonargumentative and nonsuggestive manner. A party may
instruct a deponent not to answer only when necessary to preserve a privilege, to
enforce a limitation on evidence directed by the court, or to present a motion under
subdivision (d). Otherwise, evidence objected to must be taken subject to the
objections. Instead of participating in the oral examination, parties may serve
written questions in a sealed envelope on the party taking the deposition and that
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party must transmit them to the officer, who must propound them to the witness
and record the answers verbatim.
(d) Motion to Terminate or Limit Examination. At any time during the
taking of the deposition, on motion of a party or of the deponent and on a showing
that the examination is being conducted in bad faith or in such manner as
unreasonably to annoy, embarrass, or oppress the deponent or party, or that
objection and instruction to a deponent not to answer are being made in violation
of subdivision (c), the court in which the action is pending or the circuit court
where the deposition is being taken may order the officer conducting the
examination to cease immediately from taking the deposition or may limit the
scope and manner of the taking of the deposition under rule 12.280(d). If the order
terminates the examination, it shall be resumed thereafter only on the order of the
court in which the action is pending. On demand of any party or the deponent, the
taking of the deposition must be suspended for the time necessary to make a
motion for an order. The provisions of rule 12.380(a)(4) apply to the award of
expenses incurred in relation to the motion.
(e) Witness Review. If the testimony is transcribed, the transcript must
be furnished to the witness for examination and must be read to or by the witness
unless the examination and reading are waived by the witness and by the parties.
Any changes in form or substance that the witness wants to make must be listed in
writing by the officer with a statement of the reasons given by the witness for
making the changes. The changes must be attached to the transcript. It must then
be signed by the witness unless the parties waived the signing or the witness is ill,
cannot be found, or refuses to sign. If the transcript is not signed by the witness
within a reasonable time after it is furnished to the witness, the officer signs the
transcript and states on the transcript the waiver, illness, absence of the witness, or
refusal to sign with any reasons given. The deposition may then be used as fully as
though signed unless the court holds that the reasons given for the refusal to sign
require rejection of the deposition wholly or partly, on motion under rule
12.330(d)(4).
(f) Filing; Exhibits.
(1) If the deposition is transcribed, the officer must certify on each
copy of the deposition that the witness was duly sworn by the officer and that the
deposition is a true record of the testimony given by the witness. Documents and
things produced for inspection during the examination of the witness must be
marked for identification and annexed to and returned with the deposition on the
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request of a party, and may be inspected and copied by any party, except that the
person producing the materials may substitute copies to be marked for
identification if that person affords to all parties fair opportunity to verify the
copies by comparison with the originals. If the person producing the materials
requests their return, the officer must mark them, give each party an opportunity to
inspect and copy them, and return them to the person producing them and the
materials may then be used in the same manner as if annexed to and returned with
the deposition.
(2) On payment of reasonable charges therefor the officer must
furnish a copy of the deposition to any party or to the deponent.
(3) A copy of a deposition may be filed only under the following
circumstances:
(A) It may be filed in compliance with Florida Rule of
Judicial Administration 2.425 and rule 12.280(j) by a party or the witness when the
contents of the deposition must be considered by the court on any matter pending
before the court. Prompt notice of the filing of the deposition must be given to all
parties unless notice is waived. A party filing the deposition must furnish a copy of
the deposition or the part being filed to other parties unless the party already has a
copy.
(B) If the court determines that a deposition previously taken
is necessary for the decision of a matter pending before the court, the court may
order that a copy be filed by any party at the initial cost of the party, and the filing
party must comply with rules 2.425 and 12.280(j).
(g) Obtaining Copies. A party or witness who does not have a copy of
the deposition may obtain it from the officer taking the deposition unless the court
orders otherwise. If the deposition is obtained from a person other than the officer,
the reasonable cost of reproducing the copies must be paid to the person by the
requesting party or witness.
(h) Failure to Attend or to Serve Subpoena; Expenses.
(1) If the party giving the notice of the taking of a deposition fails
to attend and proceed with the deposition and another party attends in person or by
attorney pursuant to the notice, the court may order the party giving the notice to
pay to the other party the reasonable expenses incurred by the other party and the
other party’s attorney in attending, including reasonable attorneys’ fees.
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(2) If the party giving the notice of the taking of a deposition of a
witness fails to serve a subpoena on the witness and the witness because of the
failure does not attend and if another party attends in person or by attorney because
that other party expects the deposition of that witness to be taken, the court may
order the party giving the notice to pay to the other party the reasonable expenses
incurred by that other party and that other party’s attorney in attending, including
reasonable attorneys’ fees.
Committee Note
[no change]
RULE 12.320. DEPOSITIONS UPON WRITTEN QUESTIONS
Depositions upon written questions shall be governed by Florida Rule of
Civil Procedure 1.320.
(a) Serving Questions; Notice. After commencement of the action any
party may take the testimony of any person, including a party, by deposition upon
written questions. The attendance of witnesses may be compelled by the use of
subpoena as provided in rule 12.410. The deposition of a person confined in prison
may be taken only by leave of court on such terms as the court prescribes. A party
desiring to take a deposition upon written questions must serve them with a notice
stating
(1) the name and address of the person who is to answer them, if
known, and, if the name is not known, a general description sufficient to identify
the person or the particular class or group to which that person belongs, and
(2) the name or descriptive title and address of the officer before
whom the deposition is to be taken.
Within 30 days after the notice and written questions are served, a party may
serve cross questions on all other parties. Within 10 days after being served with
cross questions, a party may serve redirect questions on all other parties. Within 10
days after being served with redirect questions, a party may serve recross questions
on all other parties. The court may for cause shown enlarge or shorten the time.
(b) Officer to Take Responses and Prepare Record. A copy of the
notice and copies of all questions served must be delivered by the party taking the
depositions to the officer designated in the notice, who must proceed promptly to
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take the testimony of the witness in the manner provided by rules 12.310(c), (e),
and (f) in response to the questions and to prepare the deposition, attaching the
copy of the notice and the questions received by the officer. The questions must
not be filed separately from the deposition unless a party seeks to have the court
consider the questions before the questions are submitted to the witness.
RULE 12.330. USE OF DEPOSITIONS IN COURT PROCEEDINGS
Use of depositions in court proceedings shall be governed by Florida Rule of
Civil Procedure 1.330.
(a) Use of Depositions. At the trial or on the hearing of a motion or an
interlocutory proceeding, any part or all of a deposition may be used against any
party who was present or represented at the taking of the deposition or who had
reasonable notice of it so far as admissible under the rules of evidence applied as
though the witness were then present and testifying in accordance with any of the
following provisions:
(1) Any deposition may be used by any party for the purpose of
contradicting or impeaching the testimony of the deponent as a witness or for any
purpose permitted by the Florida Evidence Code.
(2) The deposition of a party may be used by an adverse party for
any purpose.
(3) The deposition of a witness, whether or not a party, may be
used by any party for any purpose if the court finds:
(A) that the witness is dead;
(B) that the witness is at a greater distance than 100 miles
from the place of trial or hearing, or is out of the state, unless it appears that the
absence of the witness was procured by the party offering the deposition;
(C) that the witness is unable to attend or testify because of
age, illness, infirmity, or imprisonment;
(D) that the party offering the deposition has been unable to
procure the attendance of the witness by subpoena;
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(E) on application and notice, that such exceptional
circumstances exist as to make it desirable, in the interest of justice and with due
regard to the importance of presenting the testimony of witnesses orally in open
court, to allow the deposition to be used; or
(F) the witness is an expert or skilled witness.
(4) If only part of a deposition is offered in evidence by a party, an
adverse party may require the party to introduce any other part that in fairness
ought to be considered with the part introduced, and any party may introduce any
other parts.
(b) Objections to Admissibility. Subject to the provisions of subdivision
(d)(3) of this rule and of rule 12.300(b), objection may be made at the trial or
hearing to receiving in evidence any deposition or part of it for any reason that
would require the exclusion of the evidence if the witness were then present and
testifying.
(c) Effect of Taking or Using Depositions. A party does not make a
person the party’s own witness for any purpose by taking the person’s deposition.
The introduction in evidence of the deposition or any part of it for any purpose
other than that of contradicting or impeaching the deponent makes the deponent
the witness of the party introducing the deposition, but this does not apply to the
use by an adverse party of a deposition under subdivision (a)(2). At the trial or
hearing any party may rebut any relevant evidence contained in a deposition
whether introduced by that party or by any other party.
(d) Effect of Errors and Irregularities.
(1) As to Notice. All errors and irregularities in the notice for
taking a deposition are waived unless written objection is promptly served on the
party giving the notice.
(2) As to Disqualification of Officer. Objection to taking a
deposition because of disqualification of the officer before whom it is to be taken
is waived unless made before the taking of the deposition begins or as soon
thereafter as the disqualification becomes known or could be discovered with
reasonable diligence.
(3) As to Taking of Deposition.
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(A) Objections to the competency of a witness or to the
competency, relevancy, or materiality of testimony are not waived by failure to
make them before or during the taking of the deposition unless the ground of the
objection is one that might have been obviated or removed if presented at that time.
(B) Errors and irregularities occurring at the oral examination
in the manner of taking the deposition, in the form of the questions or answers, in
the oath or affirmation, or in the conduct of parties and errors of any kind that
might be obviated, removed, or cured if promptly presented are waived unless
timely objection to them is made at the taking of the deposition.
(C) Objections to the form of written questions submitted
under rule 12.320 are waived unless served in writing on the party propounding
them within the time allowed for serving the succeeding cross or other questions
and within 10 days after service of the last questions authorized.
(4) As to Completion and Return. Errors and irregularities in the
manner in which the testimony is transcribed or the deposition is prepared, signed,
certified, or otherwise dealt with by the officer under rules 12.310 and 12.320 are
waived unless a motion to suppress the deposition or some part of it is made with
reasonable promptness after the defect is, or with due diligence might have been,
discovered.
RULE 12.340. INTERROGATORIES TO PARTIES
Interrogatories to parties shall be governed generally by Florida Rule of
Civil Procedure 1.340, with the following exceptions.
(a) Service of InterrogatoriesProcedure for Use. Without leave of
court, any party may serve on any other party written interrogatories to be
answered by the party to whom the interrogatories are directed, or if that party is a
public or private corporation or partnership or association or governmental agency,
by any officer or agent, who must furnish the information available to that party.
Interrogatories may be served on the petitioner after commencement of the action
and on any other party with or after service of the process and initial pleading on
that party. A party may serve fewer than all of the approved interrogatories within
a form.
(1) Initial Interrogatories. Initial interrogatories to parties in
original and enforcement actions shallmust be those set forth in Florida Family
Law Rules of Procedure Form 12.930(b). Parties governed by the mandatory
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disclosure requirements of rule 12.285 may serve the interrogatories set forth in
Florida Family Law Rules of Procedure Form 12.930(b) as set forth in rule 1.340.
A party may serve fewer than the interrogatories set forth in Florida Family Law
Rules of Procedure Form 12.930(b).
(2) Modification Interrogatories. Interrogatories to parties in
cases involving modification of a final judgment shallmust be those set forth in
Florida Family Law Rules of Procedure Form 12.930(c). Parties governed by the
mandatory disclosure requirements of rule 12.285 may serve the interrogatories set
forth in Florida Family Law Rules of Procedure Form 12.930(c) as set forth in rule
1.340. A party may serve fewer than the interrogatories set forth in Florida Family
Law Rules of Procedure Form 12.930(c).
(b) [no change]
(c) Service of and Objections to Interrogatories. Each interrogatory
must be answered separately and fully in writing under oath unless it is objected to,
in which event the grounds for objection must be stated and signed. The party to
whom the interrogatories are directed must serve the answers and any objections
within 30 days after the service of the interrogatories, except that a respondent may
serve answers or objections within 45 days after service of the process and initial
pleading on that respondent. The court may allow a shorter or longer time. The
party submitting the interrogatories may move for an order under rule 12.380(a) on
any objection to or other failure to answer an interrogatory.
(d) Serving of Responses. Parties shallmust serve responses to
interrogatories on the requesting party. Responses shallmust not be filed with the
court unless they are admitted into evidence by the court and are in compliance
with Florida Rule of Judicial Administration 2.425. The responding party
shallmust file with the court Florida Family Law Rules of Procedure Form
12.930(d), Notice of Service of Answers to Standard Family Law Interrogatories.
(e) Scope; Use at Trial. Interrogatories may relate to any matters that can
be inquired into under rule 12.280(b), and the answers may be used to the extent
permitted by the rules of evidence except as otherwise provided in this subdivision.
An interrogatory otherwise proper is not objectionable merely because an answer
to the interrogatory involves an opinion or contention that relates to fact or calls for
a conclusion or asks for information not within the personal knowledge of the
party. A party must respond to such an interrogatory by giving the information the
party has and the source on which the information is based. Such a qualified
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answer may not be used as direct evidence for or impeachment against the party
giving the answer unless the court finds it otherwise admissible under the rules of
evidence.
(f) Option to Produce Records. When the answer to an interrogatory
may be derived or ascertained from the records (including electronically stored
information) of the party to whom the interrogatory is directed or from an
examination, audit, or inspection of the records or from a compilation, abstract, or
summary based on the records and the burden of deriving or ascertaining the
answer is substantially the same for the party serving the interrogatory as for the
party to whom it is directed, an answer to the interrogatory specifying the records
from which the answer may be derived or ascertained and offering to give the party
serving the interrogatory a reasonable opportunity to examine, audit, or inspect the
records and to make copies, compilations, abstracts, or summaries, production of
the records in lieu of a written response is a sufficient answer. An answer must be
in sufficient detail to permit the interrogating party to locate and to identify, as
readily as can the party interrogated, the records from which the answer may be
derived or ascertained, or must identify a person or persons representing the
interrogated party who will be available to assist the interrogating party in locating
and identifying the records at the time they are produced. If the records to be
produced consist of electronically stored information, the records must be
produced in a form or forms in which they are ordinarily maintained or in a
reasonably usable form or forms.
(g) Effect on Other Parties. Answers made by a party are not binding on
any other party.
(h) Service. Interrogatories must be arranged so that a blank space is
provided after each separately numbered interrogatory. The space must be
reasonably sufficient to enable the answering party to insert the answer within the
space. If sufficient space is not provided, the answering party may attach additional
pages with answers and refer to them in the space provided in the interrogatories.
The interrogatories must be served on the party to whom the interrogatories are
directed and copies must be served on all other parties. A certificate of service of
the interrogatories must be filed, giving the date of service and the name of the
party to whom they were directed.
Commentary
[no change]
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Committee Note
[no change]
RULE 12.350. PRODUCTION OF DOCUMENTS AND THINGS AND
ENTRY UPONON LAND FOR INSPECTION AND OTHER PURPOSES
Production of documents and things and entry upon land for inspec
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