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Can I file for a Divorce in Florida?

Mon, Dec 30, 2013 at 12:00AM

PhilThe above question is really the starting point in all cases, including a family law case, such as a dissolution of marriage or otherwise known as a divorce.  When I am consulting with a person regarding a dissolution of marriage case, the first topic area I address is what is referred to as jurisdiction.  This is very important, for we want to make sure that the court can accept the case and it can proceed here in Florida.


First, under the dissolution of marriage statute, which is Chapter 61 of the Florida Statutes, a Florida court will have what is referred to as subject matter jurisdiction (the ability to accept the case action), as long as one of the spouses has been a resident in this state for a minimum of 6 continuous months before filing the Petition for Dissolution of Marriage with the court (basically, the initial paperwork to start the divorce action).  Now, what and how a “resident” is defined, based on Florida case law interpreting the statutory language, can vary- but the bottom line is can you show or prove that you have had sufficient contacts and have been living in the state for the last 6 months.


After you have met the residency requirement, and thereby addressing the first requirement of subject matter jurisdiction, the analysis does not end there.  The next hurdle you must meet is to show that the court has what is called personal jurisdiction over both you and your spouse.  If you and your spouse both live in the state of Florida, then the presumption is that personal jurisdiction is met.  But what if you and your spouse are separated, and your spouse lives outside of the state of Florida?  There are many variables and scenarios that can be envisioned, and depending on the specific facts of your situation, will of course dictate the answer.  If the marriage was last intact here in Florida, but your spouse moves away to another state, the Florida court will most likely have personal jurisdiction over the spouse that has moved out of state.  We refer to this as long-arm personal jurisdiction.  Many times, we see that one spouse has moved to Florida, has lived here for 6 months or more, wants to file for a divorce here in Florida, but the other spouse is still living outside of Florida.  In this scenario, what we have to look at is has the out of state spouse availed himself or herself to Florida and has he or she had sufficient ‘minimum’ contacts with Florida to give the Florida courts jurisdiction over him or her.  There are many Florida appellate case law opinions interpreting this issue, but a few of the examples we see would be the out of state spouse doing business in the state of Florida, opening bank account(s) in our state, buying real property here in Florida, litigating other lawsuits in Florida courts, and/or obtaining a Florida driver’s license.  Again, the issue is very fact intensive and these are just some of the examples.

 
Finally, if you have minor children of the marriage, the other consideration as to jurisdiction and for the Florida court to be able to address children’s issues/parenting plan in the divorce case, is whether Florida is the home state of the child(ren).  Florida has adopted what is referred to as the Uniform Child Custody Jurisdictional Enforcement Act, which has been codified as part of Chapter 61 of the Florida Statutes.  The basic requirement is that for home state jurisdiction, the child must have lived for a period of 6 consecutive months in Florida before the parent’s filing for the divorce.  There are other provisions within the statute that discuss if the child is less than 6 months old, and the court in Florida having temporary or emergency jurisdiction in other situations.


If you are in need of legal representation and would like to discuss this topic or others regarding filing for a divorce in Florida, please contact me to schedule a consultation at 386.257.1222. 

 

 


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