How to file a divorce in Florida
MUST KNOW TIPS!
- If you are unsure how to proceed with your divorce, you can ask a legal professional at Avvo.com. Best of all, this service is absolutely free!
- Because Florida offers a simplified divorce process, it is in your best interests to come to an agreement with your spouse regarding consent for the divorce and asset division. Amicable divorces are considerably less expensive and time-consuming.
- If you have children, don’t use them as pawns in the divorce. You love your children, and your spouse does as well. Allow your spouse access to the children through the phone or visitation during the divorce and the divorce process is likely to be easier for it.
FLORIDA DIVORCE REQUIREMENTS
- Marriage must be irretrievably broken or
- One spouse is mentally incapacitated for at least three years
- If child custody, visitation or support are involved, mediation may be ordered by the court
- If no children were in issue from the marriage, you may qualify for a Simplified Dissolution of Marriage
- You and your spouse must be residents for six months prior to divorce
- There must be a written agreement between spouses consenting to divorce and property division
- No trial is necessary
- Regular Dissolution of Marriage requires that at least one spouse has resided in Florida for at least six months prior to the divorce
- Absolute Divorce allows you to remarry and completely resolve all property claims between spouses. Limited Divorce is akin to legal separation and disallows remarriage; you or your spouse may continue to seek ownership of assets.
REASON FOR DIVORCE
- Florida is a No-Fault state which means that there does not have to be any illicit behavior as grounds for divorce.
- As long as you or your spouse allege that the marriage is “irretrievably broken”, the marriage can be dissolved.
- Any issues of wrongdoing on the part of one or both spouses may, however, influence the judge’s decision regarding child custody, spousal support and asset division
- Mental incapacitation is grounds for divorce and is defined by Florida law as
- Your spouse must be pronounced mentally incompetent by a legal authority
- Your spouse must be mentally incompetent for at least three years prior to the divorce filing [Florida Statutes – Chapters: 61.052]
STEP 1: BEGINNING THE DIVORCE
A divorce in Florida starts with the filing of a Petition for Dissolution of Marriage. There are four types of this form:
- Petition for Simplified Dissolution of Marriage
- Petition for Dissolution of Marriage with Dependent or Minor Child(ren)
- Petition for Dissolution of Marriage With Property But No Dependent or Minor Child(ren)
- Petition for Dissolution of Marriage With No Dependent or Minor Child(ren)or Property
In order to qualify for a Simplified Dissolution of Marriage, you must meet the following criteria
- You or your spouse must have resided in Florida for six continuous months prior to filing
- Both spouses must sign and agree to all documents filed
- No minor children may be involved
- The wife may not be pregnant
- You and your spouse agree to asset division in writing
- No spousal support for either spouse is desired
- Both spouses waive their right to appeal
- All financial information is readily provided by both spouses
- Both spouses visit the county clerk to sign the petition
- Both spouses must attend a final court hearing
You must file a petition in the Florida county where you or your spouse reside and pay the required filing fee.
STEP 2: PROVIDING NOTICE
If you initiate a divorce proceeding, you must provide legal notice to your spouse. There are a number of methods to serve divorce papers to a spouse:
- Entrust service of process to the county Sheriff’s office
- Provide legal notice in person
- Deliver the papers via mail to the respondent’s legal representative, home or business
- Use a process server
Answer to Divorce
Within 20 days, your spouse must file an Answer with the court, which agrees or denies each allegation in the petition. Your spouse has the option of filing a Counter Petition which details additional reasons for seeking a divorce. Within 45 days of serving notice, both you and your spouse must file a number of required financial documents. If both parties agree to the points within the original petition, then an uncontested divorce may be had. An uncontested divorce requires that both parties sign a written agreement stipulating terms of property division, alimony and child support. This expedited process requires only a final hearing in court to finalize the divorce.
Waiver of Service
If your spouse fails to provide an Answer within 20 days, you may file a Motion for Default. If approved, you may complete the divorce with the judge largely agreeing to the points in the original petition. A default judgment eliminates the need to consider any opinions from the respondent spouse, although it may not relinquish their right to equitable distribution of assets and liabilities.
STEP 3: UNCONTESTED or CONTESTED DIVORCES
If your spouse files an Answer that disagrees with any of the allegations in the Petition for Dissolution of Marriage, or a Counter Petition, then you will face a contested divorce. This can be a costly and lengthy process which almost always requires the services of an experienced divorce attorney. Contested Divorce (Expensive Litigation)
- If your spouse does not want to end the marriage, the judge may order marital counseling
- In some cases, a judge may delay proceedings up to 90 days to allow for possible reconciliation
- If there is disagreement about certain issues, the judge may appoint a mediator to help resolve conflicts and produce a settlement
- If mediation fails, then you and your spouse will have to rely on the judge’s determination to decide unresolved issues
- During the course of a contested divorce, attorneys will conduct discovery which is investigation into the facts surrounding conflicts. This may involve document review, witness interviews and subpoena of third parties.
- Although illicit behavior may not be grounds for divorce in Florida, it does play a significant role in determining the outcome of asset division and child custody.
- Most contested divorces cost tens of thousands of dollars for each party, primarily in legal fees
Uncontested Divorce (Cost Effective Settlement)
- If you and your spouse can reach an agreement on all of the major issues, you can avoid a costly legal battle
- These issues should include asset division, spousal support and child custody
- A written agreement must be signed by both parties
- In some cases, an uncontested divorce may only cost a few hundred dollars
STEP 4: CHOOSING THE RIGHT DIVORCE METHOD
Pro Se (Lowest Cost)
If you can reach an agreement with your spouse before you file for divorce, this will make the process simple enough that you don’t require professional legal counsel. In most uncontested and simplified divorces in Florida, you can represent yourself, i.e. pro se, saving yourself months of paperwork and needless expenses on court and attorney fees. With the assistance of MyDivorcePapers.com you can answer a few questions about the nature of your divorce and be supplied with all of the necessary documents to complete the process. The easy to use guide from MyDivorcePapers.com allows you to manage and finalize your divorce in a few short, simple steps.
Mediation (Moderate Cost)
Mediators are neutral, third parties who can be found independently, or recommended by the court. These professionals cannot bind you or your spouse to an agreement, but they can offer advice and solutions which can eliminate the need for a trial. In most cases, mediation may be had for a fraction of the cost of attorneys.
Divorce Attorneys (High Cost)
If you and your spouse are unable to reach a binding, written agreement, you will have to go to trial. In that case, you will almost certainly need to hire a divorce attorney who has experience in litigation. Although the actual trial may only last a few hours or days, there may be months of discovery and trial preparation which can run the cost of the divorce into the tens of thousands of dollars.
- You will need legal counsel to guide you through the intricate litigation process
- Your spouse will likely hire an attorney
- If you need to negotiate with your spouse, an attorney will better represent your interests
- Your attorney will make motions and file the paperwork necessary to protect your legal rights
- Expert legal counsel can provide the stratagems necessary for a favorable outcome
- At the trial, you will need an experienced litigator who can effectively make arguments
STEP 5: ASSET DIVISION, SPOUSAL SUPPORT, AND CHILD CUSTODY
The thorniest issues in most divorces involve property distribution, spousal support and child custody. If you and your spouse can come to an agreement on all of these issues, it is in your best interests to do so.
Although Florida espouses “equitable distribution” when dividing assets and liabilities, there are a number of factors which can influence the outcome. Most judges will consider the station of each spouse and their contributions to the marriage.
- Length of marriage
- Career or educational sacrifices made by each spouse
- You and your spouse’s economic circumstances
- Financial and other types of contributions to the marriage
- Each spouse’s contribution to income growth
- Liabilities incurred by each spouse
- Waste or destruction of assets following the filing of the divorce petition
In dividing assets, a judge will distinguish between marital and non-marital property. This is often distinguished by the following criteria:
- Assets set aside in a prenuptial agreement
- Income derived from separate property
- Property owned prior to the marriage that is not commingled
In Florida, there is often a presumption that property acquired during the marriage is considered marital. During the divorce, you and your spouse may agree to a value for each asset, or the judge may assign a value. The judge may then split the property among the parties, or, if the property cannot be divided, they may award the property to one party and an equitable financial compensation to the other. Spousal Support Alimony or spousal support is awarded on the basis of the following criteria:
- Length of marriage
- Standard of living during the marriage
- Age and health of each spouse
- Each spouse’s financial resources
- Contributions to the marriage
- Length of time for a spouse to complete education or professional training
A court may award the following types of alimony:
- Bridge the Gap—this type of support may not exceed two years and is intended to help transition from married to single life
- Rehabilitative—this is intended to support a spouse while they complete school or vocational training
- Durational—if the marriage was less than 7 years in length, then a short term of support. If between 7 and 17 years, then a moderate period of support.
- Permanent—if the marriage was longer than 17 years in duration, then an indefinite period of spousal support may be awarded.
Alimony may take the form of periodic payments, a lump sum, or a combination. Child Custody Florida has instituted some progressive laws regarding child custody. These laws are found in the Uniform Child Custody Jurisdiction and Enforcement Act or UCCJEA. These laws encapsulate the following two objectives:
- Each child should have frequent and continuing interactions with both parents
- Both parents should share the rights and responsibilities of child rearing
Florida courts will try to award joint custody unless there is clear evidence of parental incapacity, e.g. violence, abuse. Shared parental responsibility involves both parents in decision making with regard to minor children. In order to educate parents,
Florida requires that divorcing parents take and complete the Parent Education and Family Stabilization Course. This four hour course will prepare you to work with your spouse to develop a time-sharing and parenting plan.
STEP 6: FINALIZING THE DIVORCE
If your spouse has waived their rights following notice, or if they failed to answer the Petition for the Dissolution of Marriage, you may proceed directly to the final hearing. In most cases, the judge will award you the concessions sought in the petition.
The minimum amount of time for a divorce is 60 days. If you are involved in a contested divorce, you will have to attend a trial. You and your spouse’s lawyers will attempt to convince the judge to side with them. This trial may take only a morning or several days. Following the judgment of the court, you and your spouse must attend a final hearing where the judge will sign the Final Judgment of Dissolution.