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FiveStarLaw
FiveStarLaw, Attorney
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Experience:  25 years of experience helping people like you.
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I have to prepare to represent myself in a divorce case in

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I have to prepare to represent myself in a divorce case in FL on 11/12/2013. The date was set on 10/3/2013 after the case was remanded back from the appellate court based on my appeal which I handled pro se (my pleadings were stricken as I had refused to provide my residential address and the appellate court overturned that order, thereby overturning the final judgment). The judge did not ask me if I was available on that date, and refused to allow me to continue the date she chose. She did ask if my husband's lawyer was available however.

NOTE (because this always comes up): I absolutely cannot afford a lawyer. There are no lawyers who will handle divorce pro bono (I've tried for 2.5 years) and I don't qualify for legal aid as there are no minor children (yes, I realize that is different in some areas, but that is the qualifier in that county for legal aid). My husband refuses to settle even though I've offered to give him all the assets (yes, I know that sounds crazy, but he's a psychopath), so I have no other choice than to do this myself, just as I briefed the appeal myself. Yes, we are married again since the appeal (which the judge confirmed) even though we were previously divorced and yes, I do realize that sounds "wrong" but I don't know of anything I can do about that.

I have some questions I'm hoping I can get some help with from the great lawyers here.

1. What valuation date does the court use for division of assets in Florida? This is confusing for me because we essentially separated on 3/14/2011 when he was arrested for trying to kill me. He filed for divorce on 3/20/2011. However, we continued to operate a business which he stated we would continue to do together (at the Injunction for Protection Hearing on 3/29/2011). Unbeknownst to me, he had already set up his own business (on 3/26/2011) and began instructing the customers to pay his new business. Yet, he continued to charge expenses for the business to my business account (which was not his) until 5/3/2011 -- even though he was receiving all the income from the business. At that point, I closed my business account. I had paid the mortgage and household expenses until also. Therefore, it appears to me that 5/3/2011 should be the date of valuation. Can I make that argument?

2. I have filed a motion for contempt against him as he did not comply fully with discovery. I'm waiting for the judicial assistant to provide me with a date for a hearing but we have 5 weeks until trial. The judge was aware of this when she set the trial date. Is there an official "cut off" date for discovery in Florida prior to trial?

3. There are witnesses I would like to call (business customers who were confused about how he was handling the name change back in March and April of 2011 from whom I have emails). I listed them in my discovery responses. I realize I will have to subpoena them. Can I do this in 5 weeks? Is there anything else I have to do in order to call them? Is there a timeline by which I must subpoena them? Can I send those by certified mail or will I need a process server in Florida (I no longer live there)?

4. I have read that some states require trial briefs, does Florida? If so, is there a timeline for submitting that? (There was no trial brief for the first hearing, but my pleadings had been stricken so it's possible I was not made aware of one.)

5. Apart from reading and re-reading various rules of procedure, what else do I need to research?

Thank you so very much.
Submitted: 9 months ago.
Category: Legal
Expert:  FiveStarLaw replied 9 months ago.
Hello,

Thank you for your question. I am a Florida licensed attorney and my name is Ellen. I will do whatever I can to answer your questions!

1. What valuation date does the court use for division of assets in Florida? This is confusing for me because we essentially separated on 3/14/2011 when he was arrested for trying to kill me. He filed for divorce on 3/20/2011. However, we continued to operate a business which he stated we would continue to do together (at the Injunction for Protection Hearing on 3/29/2011). Unbeknownst to me, he had already set up his own business (on 3/26/2011) and began instructing the customers to pay his new business. Yet, he continued to charge expenses for the business to my business account (which was not his) until 5/3/2011 -- even though he was receiving all the income from the business. At that point, I closed my business account. I had paid the mortgage and household expenses until also. Therefore, it appears to me that 5/3/2011 should be the date of valuation. Can I make that argument?

Yes you can make that argument. The choice of dates to value marital assets is now largely up to the trial judge’s discretion. Here is the great discussion of how this works in Florida:
http://www.floridabar.org/divcom/jn/jnjournal01.nsf/Author/DA1841D80C1681B4852572CA0048700D

2. I have filed a motion for contempt against him as he did not comply fully with discovery. I'm waiting for the judicial assistant to provide me with a date for a hearing but we have 5 weeks until trial. The judge was aware of this when she set the trial date. Is there an official "cut off" date for discovery in Florida prior to trial?
This is also within the discretion of the trial judge. Here is an article that discusses using a motion for continuance in such a situation:
http://robinroshkind.wordpress.com/tag/motion-for-continuance/

3. There are witnesses I would like to call (business customers who were confused about how he was handling the name change back in March and April of 2011 from whom I have emails). I listed them in my discovery responses. I realize I will have to subpoena them. Can I do this in 5 weeks? Is there anything else I have to do in order to call them? Is there a timeline by which I must subpoena them? Can I send those by certified mail or will I need a process server in Florida (I no longer live there)?
Yes 5 weeks would typically be sufficient.
You will need to subpoena them using a process server

4. I have read that some states require trial briefs, does Florida? If so, is there a timeline for submitting that? (There was no trial brief for the first hearing, but my pleadings had been stricken so it's possible I was not made aware of one.)
Not required unless the judge has stated otherwise

5. Apart from reading and re-reading various rules of procedure, what else do I need to research?
Since you previously stated that your husband has already taken all of the assets and your main concern is avoiding a judgment that he can use to control you in future years, you may want to consider allowing him to get the judgment and then filing a chapter 7 bankruptcy to discharge the judgment. Just a thought that I would be happy to explore further with you
Customer: replied 9 months ago.

Hello ma'am and thank you. I need a little clarification please.


 


On No. 1, that link is from 2007. Are you sure it's still valid information?


 


On No. 2, the judge was fully aware of my motion for contempt when she set the trial date on Thursday. She refused to set it any further out -- even though it's going to be VERY expensive for me to fly to Florida on short notice and I'm not able to take off work and may lose my job. She didn't care. This is a judge who is very biased and unfair towards me (and was the same way even when I did have a lawyer). She LOVES my husband's attorney and calls him a "gentleman" even though she's fully aware that he doesn't serve me with his pleadings. I am going to move to disqualify her, but I'm told it's virtually impossible in Florida. I don't know what else to do. She's not going to give me a fair trial!


 


On No. 5, when the judgment against me was first entered (the one overturned on appeal), I had a wonderful conversation with one of the other great experts here and he told me that attorney's fees cannot be overturned in Chapter 7 bankruptcy. Is that not correct? Assuming that my husband's attorney once again tries to argue for attorney's fees (because he was forced to go through a motion for contempt as I didn't disclose my home address), and knowing this judge, she will grant them, I think my only option to avoid that is to argue for my share of the assets under equitable distribution. There's a business with net profits of $150,000, a house with at least $50,000 in equity, and three vehicles worth at least $30,000. There's also the money he charged using my credit card to pay for his legal fees and multiple of his expenses, and cash withdrawals he made from my account using my debit card. All of those add up to another $30,000. I realize that I will never be able to enforce a judgment against him because he's self-employed, so I will never see a penny. But that should offset any attorney's fees he may be awarded for my refusal to disclose my new home address.


 


In asking No. 5, I was really hoping for any sites/articles/books you may know of that would help me research/prepare for trial. If you do know of any, I'd appreciate it. Thanks again.


 


 

Expert:  FiveStarLaw replied 9 months ago.

Number 1 is still valid. The purpose of providing you with that link was purely for informational purposes

 


On No. 5, when the judgment against me was first entered (the one overturned on appeal), I had a wonderful conversation with one of the other great experts here and he told me that attorney's fees cannot be overturned in Chapter 7 bankruptcy. Is that not correct?

You might need to file a Chapter 13 instead of the 7. Here is why.

 

Section 523 of the Bankruptcy Code excepts from discharge both property settlements and support obligations in Chapter 7 bankruptcy. However money to be paid as part of Marital Property Settlement Agreement would be dischargeable in a Chapter 13 bankruptcy. Money in the form of spousal support is considered a Domestic Support Obligation and thus it is not dischargeable in a Chapter 7 or Chapter 13 bankruptcy.

You can read the Code here:
http://www.law.cornell.edu/uscode/html/uscode11/usc_sec_11_00000523----000-.html

 

 

 

FiveStarLaw, Attorney
Category: Legal
Satisfied Customers: 36464
Experience: 25 years of experience helping people like you.
FiveStarLaw and 3 other Legal Specialists are ready to help you
Customer: replied 9 months ago.

Thanks for the follow up. I'd really prefer not to have to file for bankruptcy at all. It's expensive to do from everything I've looked up and ruins your credit. It would also make it extremely difficult for me to change jobs in this area as every employer does a credit check. I'm entitled to half of the assets under equitable distribution (and it should be a lot more since I bought e. While I may never be able to recoup them, if awarded, at least representing myself is an honest and fair way to do this. Bankruptcy isn't.

Expert:  FiveStarLaw replied 9 months ago.
I understand. I just thought that I would present an alternative for your consideration. I wish you the best at this difficult time

I am here to help. To speak with me again, simply place my name in the first sentence of your new question. If I cannot help you, I can direct you to someone who can.

When you receive your Customer Satisfaction Survey from JustAnswer , please consider providing me a 10 rating. It benefits my ability to assist you and other customers, and would be tremendously appreciated.

Thanks again and all the best to you.

Ellen
FiveStarLaw

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