Definition of Divorce
Divorce is the legal dissolution of a marriage by a court such that both parties to the marriage are restored to the status of being single. In Florida, the formal term that is used to describe the process of divorce is “Dissolution of Marriage”.
The Legal Process of Divorce in Florida
The process of divorce is started by one spouse filing of a “Petition for Dissolution of Marriage” with the clerk of court. The party who files the petition to begin the process of divorce, is called the “Petitioner”. The other party to the marriage is called the “Respondent”. Once the petition has been filed, the Petitioner will have the petition, along with other documents, served on the Respondent by a qualified process server. The respondent has 20 days to respond to the divorce petition by a written answer that addresses all issues raised in the petition. The respondent can also file a counter-petition that allege facts and issues that were not raised in the petition. If the respondent fails to respond within the 20 day period, the petitioner can seek a default judgment, which gives the petitioner most of the relief they requested in the petition. (However, the court must have some evidence of the respondent’s income before any support can be awarded to the petitioner). If the respondent does respond in writing within 20 days, then the divorce case will proceed through the discovery phase in which both parties exchange information with one another. Throughout this phase, the parties’ are required to provide extensive financial and other information and documents to opposing side. The lawyers will review the information received by the other party and if possible, come to a settlement of all issues in the divorce case. If the parties cannot come to a settlement of the issues within 90 days, the judge will usually order the parties to mediation where the parties will appear before a mediator (a neutral third party that is certified in the mediation of disputes) in an effort to resolve all the issues in the divorce case.
If settlement through mediation fails, then the lawyers of both parties will begin to prepare their respective cases for a “bench trial” where the judge will decide all issues in the divorce case. Family law judges have very broad discretion in the decisions that they hand down in divorce cases, and often times both the husband and the wife are unhappy with the decisions the judge has made regarding their lives. As a result, reaching a settlement of their divorce case through mediation or other means often leaves both parties feeling happier and better able to interact and co-parent with each other in the future. Even though each person may not get everything he or she demanded or wanted when resolving the divorce case through settlement, they often feel more whole after the divorce because they have had decision making input in the resolution of their divorce case, rather than being forced to have a complete stranger making all the decisions.
However, there are many times in which the parties cannot reach a settlement agreement in their divorce case. In that situation, the parties or the court will set a final hearing which functions as a bench trial where the family law judge will hear and see evidence presented from both sides. The family law judge will also hear argument from both sides. After both sides have had the opportunity to present evidence and argument, the family law judge will usually take the case under advisement, which means he will take the time necessary to come to decisions on all issues in the divorce case. The decisions will be issued in the form of a “Final Judgment of Dissolution of Marriage”, which will address in detail each party’s rights and obligations with respect to all issues raised in the divorce case.
Types of Divorce Cases in Florida
The types of divorce cases in Florida refer to how the case will proceed through the court. The following are the three types of divorce cases in Florida:
An uncontested divorce is one in which the parties have reached an agreement on all issues that will be raised in the petition, prior to filing the petition. In this type of divorce case, the parties and/or the lawyer/s will have come to an agreement on every issue. An uncontested divorce becomes final rather quickly, usually within a few weeks. The petitioner in an uncontested divorce case will most often times have to go to court only once to attend the final hearing. In most cases, the respondent is not required to appear in court at all during the divorce (provided that a “waiver of appearance” has been filed). Although all issues seem settled, the parties should be aware that sometimes a divorce case can start out as uncontested and because emotions are often high in divorce cases, the matter can become contested very quickly.
A contested divorce is one in which one or both parties disagree on one or more issues that are raised in the petition or counter-petition. This can occur when the parties disagree on one or more of the following issues: child custody/time sharing, child support, equitable distribution, alimony, etc. When people use the term “nasty divorce”, they are referring to a contested divorce. In a contested divorce, emotions are often times very high, and these types of divorces have been known to go on for years before there is a final judgment. On the other hand, a divorce can begin highly contested and then become uncontested as the parties’ “clam down”, go through mediation, or find some other way to amicably settle the issues in their case.
The purpose of a simplified dissolution of marriage is to provide certain eligible couples a less complicated way to get a divorce. The main advantage to a simplified dissolution is that the parties are not required to file a “financial affidavit” and exchange financial information. However, unlike an uncontested divorce in which the respondent is not required to go to court, both parties must join the petition and appear at the final hearing together. In order to be eligible to file a simplified dissolution of marriage, both parties must certify under oath that:
Who Can File for Divorce in Florida
Either spouse can file for divorce in Florida provided that one party meets the residency requirement and believes that the marriage is irretrievably broken. However, before filing for divorce, you should consider whether or not your marriage can be saved through counseling or some other measure.
Where to File for Divorce in Florida
In Florida, divorce petitions are filed with the Clerk of the Circuit Court. The geographic location and specific court in which a person files for divorce are referred to as venue. Either spouse can file for divorce in any of the following three places:
If the case is not filed in the proper venue, then the case can be dismissed or transferred to the proper venue. In this situation, there will be additional costs for the transfer or re-filing.
Grounds for Divorce in Florida
Like all other states, Florida has no-fault divorce laws. This means that the parties are not required and cannot attempt to prove fault of one spouse as grounds for divorce. There are only two grounds for divorce in Florida, and the Petitioner must allege one of the following grounds in order to get a divorce:
The Marriage is irretrievably broken: This is by far the most common ground for divorce, and is used almost every time a person files for divorce in Florida. A marriage is irretrievably broken when the parties can no longer live together because their difficulties are so deep and substantial that no reasonable effort could enable the parties to live together in a normal marital relationship. At the final or other hearing, the family law judge may inquire as to whether the marriage is irretrievably broken and why. A simple response of “we are no longer in love” or “we no longer have anything in common” should suffice to show the judge that your marriage is irretrievably broken, and fault of one spouse should not be alleged as a ground for divorce.
Mental incapacity of one of the spouses: This ground for divorce is rarely used, and is only appropriate if one spouse has been found by a court to be mentally incapacitated three or more years before filing of the petition for dissolution of marriage.
Residency Requirements for Divorce in Florida
To get a divorce in a Florida Court, the Court must have jurisdiction over the divorce case. To show this, the petitioner must allege that either they or the respondent have been a resident of the State of Florida for at least six months prior to the date the petition is filed. After residency is alleged, the burden of proof is on the petitioner to prove this residency requirement at the final hearing. This is usually accomplished by showing the judge one of the parties’ state issued identification cards. However, some people do not have state issued identification cards or if they do, they were issued or renewed less than six months prior to the petition being filed. In this situation, a party may prove residency by having a witness who has personal knowledge give sworn testimony that one or both parties was a resident of the State of Florida for at least six months prior to filing the petition.
Common Disputes in Divorce Cases
In divorce cases, the most common disputes arise over issues of child custody/time-sharing, property/equitable distribution, and alimony. Once equitable distribution of property and debt has been decided by a family law judge, and a final judgment has been entered, the decision stands unless it is overturned by an appellate court. In addition, modification of child custody/time-sharing and modification of alimony can only occur when there is a “substantial change in circumstance” since the final judgment has been entered.
These legal issues are complicated and the resolution of such issues depends on a judge’s interpretation of the Florida Family Law Statutes and related case law. It is up to the parties’ attorneys to extensively research and analyze their cases, so that the case can be adequately presented and argued before the family law judge. Since these issues are decided at the sole discretion of one family law judge after hearing law and argument presented by each side, it is important to have an attorney represent you in your divorce case to ensure that you receive the best possible result.