Video answers from Jacksonville family law attorney A. James Mullaney about divorce issues in Florida family law.
What are the residency requirements to file for divorce in Florida?
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To file for a divorce in Florida, you must have been a Florida resident for the six months immediately before the date for file your Petition for Dissolution of Marriage. You do not need to be a Florida resident on the date of your Final Hearing. To be considered a Florida resident, you must be in the state with the present intention to reside permanently in Florida. Evidence that you are a Florida resident includes a lease or mortgage for a residence in Florida, voter ID card, driver's license, car registration, bank account statement, or a utility bill. This requirement is not something that you can waive or agree to. It must be proven in each divorce case. The most common form of proof shown to judges is a valid Florida driver's license which shows an issued on date more than six months before the date of filing.
In Florida what if my spouse cannot be found for service of the divorce papers?
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As a general legal principal, you need to give the other side notice that a lawsuit has been filed against them. Usually, this is done by personally serving a copy of your Petition or Complaint on them by a process server. There is an alternative to this personal service if you do not know the location of your spouse. In this situation, you would need to file a document called an Affidavit of Diligent Search with the Clerk of Court. This document tells the Clerk the court how you have unsuccessfully tried to locate your spouse. Once the Clerk receives this document, they will be able to issue another document called a Notice of Action. This document needs to be published in a newspaper near the lost spouse's last known address. The ad needs to run once a week for four consecutive weeks. If the lost spouse does not respond by the date listed in the Notice of Action, this will have the same legal effect as the spouse being personally served and failing to respond. At this point, the Clerk can enter a default against the lost spouse and your case can proceed to a default final hearing.
In which Florida county should I file my divorce case?
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s long as both parties agree, a divorce case can be filed in any county in Florida. However, this is not usually the way it works out. There is usually not an agreement between the parties on where to file their divorce case. In this situation, the general rule is that you file your divorce case in the county where the Husband and Wife last lived together as Husband and Wife. For example, if a Husband and Wife lived together in Jacksonville, split up and later want to divorced, no matter who files the case, they should file in Duval County as long as at least one of them still lives in Duval County. If both parties have left the county where they last lived together as Husband and Wife, then the spouse who files the case should file in the county where the other spouse now lives. The last scenario is if one person remains in Florida and the other spouse has left Florida, the spouse remaining in Florida can file where they live even though that might not be where the parties last lived together as Husband and Wife. For example, if the parties last lived together as Husband and Wife is Duval County, and the Wife moves to Georgia, and then the Husband moves to Orlando, then he can file the divorce case in Orange County. It is important to remember that if you think your spouse has filed your case in the wrong county, you need to bring that issue to the court's attention in your initial response to the Petition for Dissolution of Marriage. If you don't raise it at that time, the court will assume that you have agreed to use that county.
What are the requirements to get a divorce in Florida?
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First, your marriage needs to be irretrievably broken. Since Florida is a no- fault state, issues such as abuse, abandonment and alcoholism are not something that you need to prove in court. These situations might still be important for the issues of equitable distribution, alimony or the establishment of a parenting plan. If counseling can help you fix your marriage, then your marriage is not irretrievably broken. An exception to the irretrievably broken requirement is the mental incapacity of one of the spouses. If a spouse is mentally incapacitated, that spouse must have been found to be mentally incapacitated under a specific Florida statute by a judge for the 3 year period prior to the start of the divorce case. The second requirement is one of the parties - not necessarily both - needs to have been a resident of the state of Florida for the 6 months immediately prior to the filing of your Petition for Dissolution of Marriage. You don't need to be a Florida resident on the date of you Final Hearing - just for the 6 months before you file your case with the Clerk of Court. The last requirement is that there must be a valid marriage. You can't get divorced if your marriage is not valid. If you think your marriage is invalid, you should speak with an attorney about the differences between divorce and annulment.
Does Florida recognize common law marriages?
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Generally, a common law marriage is where the parties hold themselves out as married and may, under certain circumstances, be considered married even though they do not have a marriage license. Florida law has prohibited common law marriages since January 1, 1968. The statute did not invalidate any common law marriages that existed at that time, it rather prohibited the creation of new common law marriages. However, there are still a few states that allow the creation of common law marriages. If you are common law married under the laws of another state, the courts in Florida will recognize your common law marriage and allow you to get a divorce if you otherwise meet the requirements to get a divorce in Florida. Currently, and this is subject to change, in the US, only Alabama, Colorado, Washington DC, Iowa, Kansas, Montana, Oklahoma, Rhode Island, South Carolina, Texas, and Utah allow the creation of common law marriages. Also, it is important to note that the process for creating a common law marriage is different in each of these states.
Does Florida recognize my common law marriage from another state?
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Yes. If you lived in another state and created a common law marriage in that state, then that marriage is recognized in Florida. In general, Florida will recognize any kind of marriage from any jurisdiction as long as the marriage was entered into under the laws of that jurisdiction. Parties alleging that they are common law married and wanting a divorce does not come up very often anymore since Florida has prohibited the creation of common law marriages since 1968. When it does come up it is usually the result of a common law marriage created in another state followed by the couples relocation to Florida. In that situation, as long as the other states common law marriage statute or rules were followed for the creation of the marriage, Florida courts will recognize the marriage and allow a divorce under Florida law, assuming the other divorce requirements are met.
What is a Marital Settlement Agreement?
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A marital settlement agreement is a contract where a husband and wife have agreed to the terms of their divorce. Typically, a marital settlement agreement addresses the issues of personal property, real,property, bank accounts, retirement accounts, vehicles, debts, child support, time sharing with children, and alimony. The agreement on each of these issues can be very complex or very simple . What matters is that there is an agreement. The purpose of having a marital settlement agreement is to take the decision making power away from the judge. Having a marital settlement agreement will typically allow you to get divorced in less time and with lower legal fees.
Is it Illegal to get Remarried before my Divorce is Final?
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Yes. You cannot be married to two people at the same time. Doing so may be a crime. If you already filed a divorce case, you are married until the judge signs your Final Judgment of Dissolution of Marriage. Generally, I see this situation arise when a couple tries to do their divorce case by themselves without lawyers. When they do this, they will eventually see a magistrate for a final hearing. At this hearing, the magistrate will either approve their settlement agreement or make decisions about their case. At the end of these hearings some people assume that their case is over and that they are single again. This is not the case. The magistrate cannot dissolve your marriage. They can only recommend to the judge that your marriage be dissolved. After one of these hearings, the magistrate will recommend that the judge approve of the magistrate's rulings. This almost always happens. The problem is that it takes a week or two. During this delay, you are still married and cannot get married to someone else. If you want to get remarried, you should wait until you have a Final Judgment signed by the judge.