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Continuance on divorce case?

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jaw1922

Junior Member
What is the name of your state? Florida

My case is a little complicated, but I'll do my best to sum it up without leaving details out.

My husband is currently incarcerated for lewd/lascivious battery victim 12-15. His release date is currently February 15, 2009. This is the earliest he can be released with all gain time earned. He is a British National and will be deported back to the UK upon his release.
We have a 22 month old daughter. His incarceration began when she was 6 weeks old.

I filed for divorce on April 9, 2008 and he was served on April 15th. On Friday, I received a hand-written copy (I guess he wrote it out several times) of something entitled "Respondent's Response and Motion for Continuance." He is asking that the case be continued until his date so that he may have a "fair judicial hearing." He also states he cannot obtain legal counsel until he is released.

I have filed pro se, as I cannot afford to pay an attorney and I make too much to qualify for legal aid.

This move has left me simply muddled. I have never heard of a continuance of a divorce case, let alone one based upon incarceration. He has access to a law library, so his claim that he cannot pursue the case is false. Additionally, I am confused about what I should do next. He did not respond to my petition in that he did not admit or deny any allegations. Can I file for default? Am I supposed to respond to his Motion?

I'm just so confused and feeling pretty stupid for getting myself into this mess.
 


M

mistoffolees

Senior Member
jaw1922 said:
What is the name of your state? Florida

My case is a little complicated, but I'll do my best to sum it up without leaving details out.

My husband is currently incarcerated for lewd/lascivious battery victim 12-15. His release date is currently February 15, 2009. This is the earliest he can be released with all gain time earned. He is a British National and will be deported back to the UK upon his release.
We have a 22 month old daughter. His incarceration began when she was 6 weeks old.

I filed for divorce on April 9, 2008 and he was served on April 15th. On Friday, I received a hand-written copy (I guess he wrote it out several times) of something entitled "Respondent's Response and Motion for Continuance." He is asking that the case be continued until his date so that he may have a "fair judicial hearing." He also states he cannot obtain legal counsel until he is released.

I have filed pro se, as I cannot afford to pay an attorney and I make too much to qualify for legal aid.

This move has left me simply muddled. I have never heard of a continuance of a divorce case, let alone one based upon incarceration. He has access to a law library, so his claim that he cannot pursue the case is false. Additionally, I am confused about what I should do next. He did not respond to my petition in that he did not admit or deny any allegations. Can I file for default? Am I supposed to respond to his Motion?

I'm just so confused and feeling pretty stupid for getting myself into this mess.
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YOU received a hand written copy? He should have filed it with the court, not you.

Regardless, unless you get something from the court telling you that the date has changed, assume that it has not changed and be there when you were supposed to be there. You can certainly file for default, although I don't know if you have a legal obligation to tell the court that you received his motion that should have been filed with the court. Someone else here may be able to answer that.

In the meantime, assume that nothing has changed and proceed.
 
J

jaw1922

Junior Member
mistoffolees said:
YOU received a hand written copy? He should have filed it with the court, not you.
Click to expand...
I believe he DID file with the court, but as he does not have access to a photocopier, he wrote it out several times, sent one to the court, one to me and probably kept one for his records. He included a Certificate of Service, as well as wrote me an additional letter in a separate envelope stating that he sent it to the court, among other things.

Thank you for your help. I will proceed with the default and see what happens.
 
J

jaw1922

Junior Member
mistoffolees said:
YOU received a hand written copy? He should have filed it with the court, not you.
Click to expand...
I believe he DID file with the court, but as he does not have access to a photocopier, he wrote it out several times, sent one to the court, one to me and probably kept one for his records. He included a Certificate of Service, as well as wrote me an additional letter in a separate envelope stating that he sent it to the court, among other things.

mistoffolees said:
Regardless, unless you get something from the court telling you that the date has changed, assume that it has not changed and be there when you were supposed to be there.
Click to expand...
Thats another thing, NO DATE has been set for mediation, hearing, or other proceeding. That is why I am so confused. I was waiting for an answer to the petition for dissolution of marriage. Technically, I never got one. So I suppose proceeding with the default is the correct action to take.

Thank you, and I would appreciate input from anyone else as well!
 
LdiJ

LdiJ

Senior Member
jaw1922 said:
I believe he DID file with the court, but as he does not have access to a photocopier, he wrote it out several times, sent one to the court, one to me and probably kept one for his records. He included a Certificate of Service, as well as wrote me an additional letter in a separate envelope stating that he sent it to the court, among other things.



Thats another thing, NO DATE has been set for mediation, hearing, or other proceeding. That is why I am so confused. I was waiting for an answer to the petition for dissolution of marriage. Technically, I never got one. So I suppose proceeding with the default is the correct action to take.

Thank you, and I would appreciate input from anyone else as well!
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No, proceeding with a default is not the correct route to take. He responded. He may not have specifically responded to the allegations, but he responded.

You need to file an objection to a continuance and ask that a hearing date be set.

In reality though, if you really want this divorce to proceed, it would be in your best interest to get an attorney. It will be a lot harder to get divorced once he is deported back to the UK.
 
G

Gracie3787

Senior Member
jaw1922 said:
I believe he DID file with the court, but as he does not have access to a photocopier, he wrote it out several times, sent one to the court, one to me and probably kept one for his records. He included a Certificate of Service, as well as wrote me an additional letter in a separate envelope stating that he sent it to the court, among other things.

Thank you for your help. I will proceed with the default and see what happens.
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If he did file that paper, you cannot proceed with a default.

before you can have a date set for the final hearing, his motion for a continuance must be heard. I know from experience that the court is likely to grant the motion for continuance, but you should still object to it. (when I wanted to divorce my first husband, he was in prison, we couldn't get divorced until he was released).

Try reading through the court rules, there might be something in there that you can use to object:

Florida Rules of Civil Procedure http://phonl.com/fl_law/rules/frcp

Florida family Law Rules http://phonl.com/fl_law/rules/famlawrules
 
J

jaw1922

Junior Member
Ok, I'm more confused that ever.

I just spoke with an attorney, who said that you cannot continue a divorce case. That you can only continue specific hearings or trials, and that I should proceed with the default as my husband neither admitted, nor denied any allegations.

Any other thoughts???
 
G

Gracie3787

Senior Member
jaw1922 said:
Ok, I'm more confused that ever.

I just spoke with an attorney, who said that you cannot continue a divorce case. That you can only continue specific hearings or trials, and that I should proceed with the default as my husband neither admitted, nor denied any allegations.

Any other thoughts???
Click to expand...
You can give it a try and see what happens. It will basically depend on whoever sets hearing dates in your county. (in some counties the clerk sets the date, in others the Judge's secretary sets them).

My husbands ex filed a handwritten letter in responses to a modification, but did not serve him with a copy, when he went to the courthouse to ask for a default, the clerk said she couldn't do that because his ex had filed the letter, even though it wasn't in proper form nor did it deny or agree to any allegations. So, if this attorney you spoke to said you can do this, go ahead and give it a try.
 
J

jaw1922

Junior Member
UPDATE!

Just in case anyone needs this sort of information in the future...

I spoke to the lawyer again who said that whenever ANYTHING is sent from the other party, the clerk will not enter a default. THEREFORE, whenever something like this happens, it is necessary to set a hearing for the default.

The lawyer told me that in my case, it is obvious that my ex is trying to drag this out. There are plenty of men and women in prison who get divorced every day.

This is what she told ME to do:

1. File a Motion for Default on the case.
2. File a Motion to Waive Mediation, since mediation would not be appropriate due to the respondent's incarceration (aka there is nothing to mediate).
3. File a Motion for Hearing on Motion for Default, Motion to Waive Mediation, AND Motion for Continuance. (Filing a motion for a hearing is something they do in my county. Other counties my require that you call the judge's secretary to set a hearing.)

She said that PROBABLY, my motion for default would be denied and my motion to waive mediation would be granted. HIS motion for continuance will most likely be denied as well. She said that while my motion for default will be denied, my real purpose in filing is to get the ball rolling on this case and to be able to speak to the judge in person. If I do nothing, then nothing will happen.

I filed my Motions yesterday, I'll let you all know what happens.
 
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