Opinion

In Re: Amendments to Florida Family Law Rules of Procedure

  • 42 Fla. L. Weekly Supp. 319
  • 214 So. 3d 400
  • 2017 Fla. LEXIS 598
  • 2017 WL 1031456
Court
Supreme Court of Florida
Filed
Mar 16, 2017
Status
Published
On the bench
Labarga, Pariente, Lewis, Quince, Canady, Polston, Lawson
Cited by
10 cases
Authority
More cited than 76.5%

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.

-3-

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,”

-8-

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.

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(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.

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(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:

- 25 -

(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

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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

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(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

- 41 -

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.

- 42 -

(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

- 43 -

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

- 44 -

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.

- 45 -

(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

- 47 -

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

- 49 -

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.

- 52 -

(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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