FAMILY LAW RULES OF PROCEDURE Flashcards
12.285 mandatory disclosure rules apply to family cases except:
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 OR
action for fees based solely on 57.105 -
Can parties agree to modify compliance with 12.285?
Yes but not with respect to FA or CSG
Are parties obligated to produce original documents for purposes of 12.285?
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.
When are parties required to produce original records?
Upon request IF available.
After parties produced records pursuant to 12.285, are they obligated to produce it again?
No, parties shall not be required to serve duplicates of documents previously served.
What if anything in compliance with 12.285 should be filed with the court
Only FA and CSG - 12.285 specifically states no docs to be filed with court unless court order.
When is compliance with 12.285 due for temporary relief hearing?
10 days before a temporary relief hearing unless it was served when due (45 days after R served)
When does respondent have serve 12.285 docs for a temp relief hearing?
R must serve the required documents on the party seeking
relief at least FIVE days prior to the temporary financial hearing, unless the docs were already served
When is 12.285 discovery due in an initial / modification proceeding?
45 days of service of the initial pleading on the respondent
When are parties excused from filing a serving FA
-If seeking simplified DOM OR
They have no MC, no support issues, and have filed written settlement agreement disposing of all financial issues OR
-Court has no jur do address financial issues
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, what must be served on other party before temporary relief hearing?
- FA (must be filed with court & cannot be waived by parties)
- Federal and state income tax return, gift tax return, intangible personal property tax return files within the last year (party can file transcript in lieu of return)
- W2, 1099 K-1 for the past year if tax return for that year not prepared but if no tax return for last 2 years need 2 years of W2, 1099 & K-1
- Pay stubs or other evidence of earned income for the
6 months before compliance with these disclosure requirements for temporary financial relief.
What must a party serve 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?
- FA
- 3 years tax returns
- IRS forms W-2, 1099, and K-1 for the past year, if
the income tax return for that year has not been prepared. If
income tax returns have not been filed for any of the prior 2 years beyond the past year, then IRS forms W-2, 1099, and K-1 for those prior 2 years as well - Pay stubs or other evidence of earned income for the
6 months before compliance with these disclosure requirements for initial or supplemental proceedings - A statement by the producing party identifying the
amount and source of all income received from any source during the 6 months preceding the compliance with these disclosure requirements for initial or supplemental proceedings if not reflected on the pay stubs produced. - All loan apps & financial statement for last 24 months months
- All deeds for last 3 years, all promissory notes or other documents evidencing money owed to either party at any time within the last 24 months and all leases, 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 a party or a minor or adult dependent child of both parties, or in someone else’s name on the party’s behalf wherein either the party is receiving or has received payments at any time within the last 3 years for leased real or personal property, or owns or owned an interest - All periodic statements from the last 12 months f12 months for all other accounts
- All brokerage account statements in which either
party to this action held within the last 12 months - The most recent statement and statements for the
past 12 months for any profit sharing, retirement, deferred
compensation, or pension plan (for example, IRA, 401(k), 403(b), SEP, KEOGH, or other similar account - he most recent statement and statements for the
past 12 months for any virtual currency transactions in which
either party to this action participated within the last 12 months - The declarations page, the last periodic statement,
statements for the past 12 months, and the certificate for all life insurance policies insuring the party’s life or the life of the party’s spouse - 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. - All promissory notes evidencing a party’s indebtedness for the last 24 months
- All written premarital or marital agreements entered
into at any time between the parties to this marriage whether
before or during the marriage, and all affidavits and declarations of non-paternity or judgments of disestablishment of paternity for any minor or dependent children born or conceived during the marriage. Additionally, in any modification proceeding, each party must serve
on the opposing party all written agreements entered into between them at any time since the order to be modified was entered. - All documents 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 - Any court orders directing a party to pay or receive
spousal or child support
When does a party have an obligation to disclose new financial info?
Continuing duty to supplement whenever there is a material change in their financial circumstance
What must be included with an amended FA?
The amending party must also serve any subsequently discovered or acquired documents supporting the amendments to the financial
affidavit
Can a party be sanctioned for failure to comply with 12.285
Any document to be produced under this rule that is not served on the opposing party within the time periods set
forth for temp relief hearings, before a nonfinal hearing
or in violation of the court’s pretrial order shall not be admissible in evidence at that hearing unless the court finds good cause for the delay. In addition, the court may impose other sanctions authorized by rule 12.380 as may be equitable under the circumstances. The court may also impose sanctions upon the offending lawyer in lieu of imposing sanctions on a party.
Can a party seek an extension of time to comply with MD?
Either party may file, before the due date, a motion to enlarge the time for complying with mandatory disclosure. The court must grant the request for good cause shown
When must objections to MD be filed?
Objections to the mandatory automatic disclosure shall be served in writing at least 5 days before 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 must impose sanctions for the filing of meritless or frivolous objections.
If children are involved, what does 12.285 require?
Parties must file a CSG
Where shall MD docs be produced?
Unless otherwise agreed by the parties or ordered by the court, all production required by this rule 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 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.
Where shall production take place if venue is challenged?
On motion by a party the court must designate the place where production will occur pending determination of the venue issue
Can a default fj be entered if the default party doesn’t comply with 12.285?
Yes
Can an FA be compelled in an enforcement or contempt proceeding?
Yes - 12.287 - a short form FA must be filed within 10 days (can seek more or less time by approval of court)
When may a party request any other party to submit to an examination by a qualified expert?
When the condition that is the subject of the request is in controversy and there is good cause
What is needed for a request for a examination of physical condition?
- Condition must be in controversy
- Burden on requesting party to show good cause
- Request must specify reasonable time, place, manner, conditions and scope of exam.
- Exam takes place in county of party’s residence
- 30 days after request, other party shall file a response agreeing or objecting (or 45 days if request made with initial petition)
- If other people to be present - request / response should say so.
What must be included for a request for a non-physical evaluation?
The order for examination may be made only after notice to the person to be examined and to all parties, and must specify the time, place, manner, conditions, and scope of the examination and the person or persons by whom it is to be made
Party does not put his or her mental condition in controversy
merely by seeking custody
What happens when a party who submits to an evaluation requests the report and/or a depo of examiner?
The party examined waives any privilege that party may have in that action or any other involving the same controversy regarding the testimony of every other person who has examined or may thereafter examine that party concerning the same condition.
What is required in order to preserve claim for appeal
Must file a motion for rehearing
When must a a motion for rehearing be filed
A motion for new trial or for rehearing must be served not later than 15 days after the return of the verdict in a jury action or the date of filing of the judgment in a non-jury action. A timely motion may be amended to state new grounds in the discretion of the court at any time before the motion is determined.
