Presuit investigation and procedures

• Author: Annette J. Szorosy/Stephanie Matalon
• Profession: General Magistrate/General Magistrate
• Pages: 231-286

PRESUIT

INVESTIGATION,

PROCEDURES

4-1

CHAPTER 4

Presuit Investigation

and Procedures

QUICK VIEW

Once the client and the lawyer have established their professional relationship and they have concluded

their initial interview, the lawyer needs to evaluate his or her process and procedures. Instead of the previous

two parallel courses towards litigation and settlement, the two new parallel courses are towards f‌inancial

discovery and interventions to make successful negotiation and mediation and a lasting settlement possible,

without court involvement and continuing conf‌lict. This interdisciplinary approach recognizes that there may be

emotional or psychological barriers to proceeding in the legal dissolution of marriage. Family members may

have problems that complicate the legal proceeding and lead to unnecessary conf‌lict if not addressed. This

chapter deals with those interventions, as well as communication with the other side, and pre-suit discovery.

First, emergencies and false emergencies need to be identif‌ied. Decisions need to be made as to whether to

immediately proceed to court or to begin with pre-suit interventions. The purpose of this chapter is to guide

the lawyer through the process of identifying issues and non-issues, determining whether to immediately f‌ile in

court, and how to proceed through pre-suit investigation and interventions. The family lawyer should not under-

estimate the effects of the emotional dissolution of marriage. The intent is to focus on the interventions earlier

in the legal process, before f‌iling, to avoid or minimize litigiousness and to promote therapeutic jurisprudence.

Matters that go beyond strictly legal questions may also be in the domain of another profession. Family matters

can involve problems within the professional competence of psychiatry, clinical psychology, or social work;

business matters can involve problems within the competence of the accounting professional or of f‌inancial

specialists. Where consultation with a professional in another f‌ield is itself something a competent lawyer would

recommend, the lawyer should make such recommendation.

TABLE OF CONTENTS

I. EMERGENCY RELIEF: PROTECT CLIENT, CHILDREN, PROPERTY, AND YOURSELF

A. Protect Yourself

§4:01 Unnecessary Ex Parte Relief Is Detrimental

§4:02 Mental Health Professional at Consultation

§4:03 Impact of Duty of Candor

B. Protect Client

§4:10 Evaluate Client’s Perception and Veracity

§4:11 Warning Signs of Abuse

§4:12 Safe Haven

PRESUIT

INVESTIGATION,

PROCEDURES

Florida Family Law and Practice 4-2

§4:13 Identify False Claims

§4:14 Reasonable Emergency Investigation

§4:15 Act Immediately Using Florida Family Law Forms

§4:16 Download Petitions and Form Orders From Internet

§4:17 Use Common Sense

C. Protect Children

§4:30 Evaluate Client’s Perception and Veracity

§4:31 Seek Buffers

§4:32 Identify False Claims

§4:33 Reasonable Emergency Investigation

§4:34 Act Immediately Using Florida Family Law Forms

§4:35 Use Common Sense

D. Protect Property

§4:40 Evaluate Client’s Perception and Veracity

§4:41 Identify False Claims

§4:42 Reasonable Emergency Investigation

§4:43 Act Immediately Using Florida Family Law Forms

II. CONTACT WITH OPPOSING PARTY

A. How to Make First Contact

§4:50 Methods

§4:51 First Contact by Letter

§4:52 By Phone

§4:53 By Service of Process

B. Effec tive Communications

§4:60 Dealing With Noninitiator Respondent’s Emotional Issues

§4:61 Communication Guidelines

§4:62 Reality Check

§4:63 Voluntary Cooperation and Mutual Tickler System

§4:64 Neutralizing “Bomber” Lawyer

§4:65 Neutralizing Uncooperative Self-Represented Respondent

§4:66 Neutralizing “Bomber” Self-Represented Litigant

§4:67 Remember Your Own Client

III. INITIAL MEETING WITH OPPOSING PARTY

§4:80 “Meeting in Month”

§4:81 Strategy and Timing

§4:82 Purpose and Intent

§4:83 Preparation

§4:84 Information to Be Gathered

§4:85 Valuations

§4:86 Follow-Up

§4:87 Using Mediation at Initial Stages

IV. SAVING MARRIAGE

§4:100 Lawyer ’s Obligation

§4:101 Initiator or Noninitiator

§4:102 “ Quick Study”

§4:103 [Reserved]

§4:104 [Reserved]

§4:105 Marriage Counseling

§4:106 Physical Separation

§4:107 Divorce Counseling

§4:108 Family Counseling

PRESUIT

INVESTIGATION,

PROCEDURES

4-3 Presuit Investigation and Procedures

V. FINANCIAL DISCOVERY

§4:120 Requirement

§4:121 Of Own Client

§4:122 By Own Client

§4:123 Internet, Computer, and Third Parties

§4:124 Hidden or Dissipated Assets

§4:125 Cash or Living Beyond One’s Means

§4:126 Gambling

§4:127 Creation of Financial Aff‌idavit

§4:128 Common Mistakes in Preparing Aff‌idavit

§4:129 Aff‌idavit Must Be Accurate About Current Circumstances

§4:130 Consider Attachments and Charts at End of Financial Aff‌idavit

§4:131 Mandatory Disclosure

§4:132 Creation of Child Support Guidelines Worksheets

§4:133 Changing Homes

§4:134 Credit and Debt

§4:135 De Minimis Assets and Expenses

§4:136 Supportive Relationship: Is One Party Living With Another Person?

VI. CHILD ISSUES: PARENTING PLAN

A. General Points: Parenting Plan Concerns

§4:140 Resources for Parents and Lawyers and Choosing a Parenting Plan Form

§4:141 Parents Impaired by Emotional Dissolution of Marriage Process

§4:142 Lawyer and Client Reality Training

§4:143 Paternity Disestablishment

§4:144 Change in How to Conduct the Business of Family Law

§4:145 Parenting Plan Recommendation

B. Stress and Change Issues

§4:150 Identif‌ication

§4:151 Evaluation

C. Trust Issues

§4:160 Identif‌ication

§4:161 Intervention

D. Communication Issues

§4:170 Identif‌ication

§4:171 Evaluation

§4:172 Intervention

E. Conf‌lict Issues

§4:180 Identif‌ication

§4:181 Evaluation

§4:182 Intervention

F. Child Development Issues

§4:190 Identif‌ication

§4:191 Ages Up to Two Years and Parenting Plan Development

§4:192 Ages 3 to 5 and Parenting Plan Development

§4:193 Ages 6 to 8 and Parenting Plan Development

§4:194 Ages 9 to 12 and Parenting Plan Development

§4:195 Ages 13 to 18 and Parenting Plan Development

G. Time-Sharing Issues

§4:200 Parenting Plan

§4:201 Identif‌ication

§4:202 Evaluation

§4:203 Intervention

§4:204 Decision-Making Common Sense Implementation Procedures