The New Federal Summary Judgment in Family Law Cases

Family law attorneys rarely seek summary judgment in divorce, paternity, and family law cases. But, marital and family law attorneys should be aware that summary judgment is more achievable in family law cases, especially motions for partial summary judgment. A partial summary judgment is when a party seeks final determination of an issue in a family law case, as opposed to judgment on the whole case.

For example, a party in a divorce case might seek partial summary judgment on whether property is marital or non-marital. Partial summary judgment might also be appropriate on the portion of a military retirement that is subject to equitable distribution. In a post-judgment case, summary judgment or partial summary judgment might be appropriate on whether something qualifies as a substantial change in circumstances. Importantly, a motion for summary judgment also flushes out the facts a party might (or might not) have to support their legal position. In a paternity case, a father might seek summary judgment that he is the legal father, that paternity was previously established, or that he is a natural guardian of the child or children.

Florida courts recently modified the Florida summary judgment standard to make summary judgment easier to achieve for the moving party. The same standard applies in Florida family law cases. The purpose of this blog is to help family law attorneys better understand the new summary judgment standard and how a motion for summary judgment or partial summary judgment might be used to achieve results in a family law case.

Nearly identical to the corresponding rule of civil procedure, Florida Family Law Rule of Procedure 12.510(a) provides the standard for granting summary judgment in family cases. Blew v. Blew, 48 Fla. L. Weekly D653a (Fla. 4th DCA Mar. 29, 2023).

The summary judgment standard provided for in Rule 12.510 must now “be construed and applied in accordance with the federal summary judgment standard.” See Fla. Fam. L.R.P. 12.510(a); see also Celotex Corp. v. Catrett, 477 U.S. 317 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986); and Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986).

The summary judgment procedure is not longer a “disfavored procedural shortcut.” Courts are required to view summary judgment as an integral part of rules aimed at “the just, speedy and inexpensive determination of every action.” See In Re Amendments to Florida Rule of Civil Procedure 1.510, 317 So. 3d 72, 75 (Fla. 2021) (citing Celotex, 477 U.S. at 327).

Under the federal summary judgment standard, when “opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment.” See In Re Amendments to Florida Rule of Civil Procedure 1.510, 317 So. 3d 72, 76 (Fla. 2021) (quoting Scott v. Harris, 550 U.S. 372, 380 (2007)); see also Lloyd S. Meisels, P.A. v. Dobrofsky, 341 So. 3d 1131, 1134 (Fla. 4th DCA 2022).

“In Florida it will no longer be plausible to maintain that ‘the existence of any competent evidence creating an issue of fact, however credible or incredible, substantial or trivial, stops the inquiry and precludes summary judgment, so long as the slightest doubt is raised.’” See Lloyd S. Meisels, 341 So. 3d at 1134 (quoting In Re Amendments to Florida Rule of Civil Procedure 1.510, 317 So. 3d at 75-76).

On its face, the new Rule 12.510 requires that a court must grant a motion for summary judgment “if the pleadings and summary judgment evidence on file show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fla. Fam. L.R.P. 12.510(c).

“Genuine disputes are those in which the evidence is such that a reasonable factfinder could return a decision for the nonmoving party.” Ibarra v. Ross, 350 So. 3d 465, 467 (Fla. 2d DCA 2022).

A material fact is one that is essential to the resolution of the legal questions raised in the case. See Crescent Shore Condo. Ass’n. v. Kai, 330 So. 3d 582, 587 (Fla. 2d DCA 2021); Howell v. Pasco County, 165 So. 3d 12, 14 (Fla. 2d DCA 2015).

The non-moving party must present affirmative evidence in order to defeat a properly supported motion for summary judgment. See Hohns v. Thompson, 350 So. 3d 788, 792 (Fla. 5th DCA 2022).

The Court is entitled to enter summary judgment against a party who fails to file a response to a properly supported motion for summary judgment. See Lloyd S. Meisels, 341 So. 3d at 1136.

A motion for summary judgment or motion for partial summary judgment can be an invaluable tool in family law cases for narrowing the issues for trial or flushing out the opposing party’s evidence supporting an allegation. A key to using this tool effectively in family law cases is closely following Rule 12.510, serving the proper notice, and adhering to the timelines established by the Rule.

Name Changes in Florida Marriage and Divorce

Many clients have asked when and how a spouse’s name legally changes under Florida law upon taking marriage vows, filing the marriage certificate, or seeking divorce.

Most Florida residents received their name on their birth certificate. See Smithers v. Smithers, 804 So. 2d 489, 491 (Fla. 4th DCA 1991). Florida case law recognizes a person's name is simply a group of words that distinguish or designate one person from others. See Levey v. Dijols, 990 So. 2d 688, 693 (Fla. 4th DCA 2008) (citing Black's Law Dictionary and Merriam-Webster dictionary).

Traditionally, a person could adopt another name at will, absent a fraudulent, criminal, or wrongful purpose. See Isom v. Tenth Circuit, 437 So. 2d 732, 733 (Fla. 2d DCA 1983). In English speaking countries, it was customary that a wife adopts her husband's surname in place of the surname of her father. Davis v. Roos, 326 So. 2d 226, 228 (Fla. 1st DCA 1976).

The law today is clear that a wife does not adopt her husband's surname automatically upon marriage. Roos, 326 So. 2d at 227. To the contrary, a woman's right to maitain her birth name after marriage is well established under Florida law. See Pilch v. Pilch, 447 So. 2d 989, 989 (Fla. 1st DCA 1984). The same rules would apply to a same sex spouse.

Today, when a spouse chooses to adopt another spouse’s name after marriage, that becomes her name under the common law. Smithers v. Smithers, 804 So. 2d 489, 492 (Fla. 4th DCA 2001). This normally includes changing a driver's license, social security card, and other forms of identification. In some cases, a spouse might use the other’s spouse’s surname professionally and on government identification, while also continuing to use their birth name. See Levey v. Dijols, 990 So. 2d 688, 691 (Fla. 4th DCA 2008).

The Florida Legislature adopted a name change statute primarily to add clarity and aid the right to obtain a name change at will, giving the advantage of a public record to document the change. See Isom, 437 So. 2d at 492. Notably, the Florida name change statute expressly states that the statutory requirements do not apply to any change of name in proceedings for dissolution of marriage. See Fla. Stat. § 68.07.

In divorce, a spouse who changed their name in connection with the marriage has the recognized right to return to their birth name, even if that name differs from her children. See Pilch, 447 So. 2d at 990. While a spouse may request their name to be changed, no one else may request a name change for another person. See Warfield v. Warfield, 661 So. 2d 924, 926 (Fla. 4th DCA 1995). Absent fraud, courts do not have the authority to order a spouse’s name to be changed back to their birth name without their consent, even if the other spouse demands it. See Smithers, 804 So. 2d at 491.

If you have questions about a Florida name change or dissolution of marriage, please contact one of our experienced family law attorneys.

Navigating the Pretrial Process

What is pretrial in family law?

After filing for divorce, exchanging required documents and other discovery, and attending mediation, the next step is typically scheduling trial. Many judges require that the parties attend a pretrial conference or pretrial hearing before setting a trial date. A pretrial conference is an important step in any family law case, because it presents the opportunity to present to the court that your case is ready for trial. Many times, the court may order the parties to mediation, which provides another chance to settle the case before incurring the cost of trial, which is typically the most expensive and time-consuming stage of the case. If you are in the process of getting a divorce in Florida, you should consult the experienced divorce attorneys at Mockler Leiner Law to ensure you are doing what is right for your case.

What happens at a pretrial conference?

A pretrial conference serves as a meeting between both parties, their counsel, and the court. This hearing is set to present the status of the case, including identifying the key issues, underlying facts, and both parties’ requests for relief. While pretrial primarily addresses the logistical and procedural matters of the case, it also allows the judge to get a feel for the details of the case. What do the parties really disagree about? How many alimony is being sought? What are the different types of relief requested?

During the conference, each party’s attorney will address the judge, introducing the key issues and proposing where their side stands in terms of readiness for trial. While it is uncommon for clients to play any significant role in the pretrial conference, the court may ask you to discuss what you are seeking. If this happens, you want to ensure you are prepared. After both attorneys have presented their sides, the judge then decides on how to proceed. This depends on what issues remain unresolved and whether additional time or discovery is needed. The court may also consider whether a referral to mediation will serve as an effective tool for settlement and possibly resolve the case. The judge may even provide you some insight on the benefits of settlement and what you might expect at trial. This often includes a speech about keeping your finances and parenting decisions in your own hands, as opposed to turning those decisions over to someone less familiar with the details of your family situation. Ultimately, this input from the judge may be crucial to planning your litigation strategy. The parties need to decide whether continuing with trial is advantageous and whether the case is ready for trial.

What if we do not settle?

While many cases do settle following the pretrial conference, this is not always the case. Depending on the facts of your specific case, you may not have a choice, especially where there is no settlement offer that protects your interests or your children. The settlement offer may also depend on whether your attorney has the tools to get the a favorable result. Working with an experienced family law attorney is crucial to the outcome of your case. Your attorney will be able to anticipate the legal matters necessary to advance your case, advocate for your interests, and achieve the right result for you.

What happens after pretrial?

Following the pretrial hearing, your attorney will review the court’s pretrial order and the work that needs to be done before proceeding to a final hearing. Your attorney may also confer with the opposing party to see if there is a mutually agreeable settlement that can be reached. However, if no resolution is available, your case may continue to trial, and you will have numerous deadlines for exchanging more discovery, deposing witnesses, disclosing witnesses, and doing all the work necessary to prepare for trial.

Mockler Leiner Law, P.A.

The skilled attorneys at Mockler Leiner Law have extensive experience litigating contested divorce cases. Contact us today to ensure you are represented by an attorney you trust at your pretrial conference.

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