Divorce Procedure

SIMPLIFIED DISSOLUTION OF MARRIAGE: A Husband and Wife may file a petition for a “simplified dissolution” if:

  • there are no minor children of the parties;
  • the wife is not pregnant;
  • the parties have made a satisfactory division of their property and debts; and
  • at least one party has lived in Florida for the past six months before filing.

If you fall into this category, you may request simplified dissolution forms from the Clerk of Court in your county. The parties must file a joint petition and a marriage settlement agreement. In addition, both parties must file their own financial affidavit. Once these forms are completed, the matter will be set for a brief hearing and the court will issue a Final Judgment.

DIVORCE PROCEDURES: When the above circumstances do not apply, it is recommended that the parties consider representation by counsel. In those cases where representation is not affordable, many attempt to represent themselves “pro se” and to attempt filing for or answering a divorce petition on their own. Some Clerks of Court have extensive pro se litigant programs which make every attempt to assist in unrepresented divorce actions. Depending on the county Clerk of Court program, forms and check lists are often available in the form of packets which are arranged according to the circumstances (i.e. children and no property; property and no children; etc.). Some county Bar or legal services associations offer free seminars wherein, if you are eligible, you may schedule to meet with a volunteer attorney to review your paperwork before filing.

When filing for a divorce, the Petitioner must file all necessary pleadings and affidavits and will likely have the Respondent personally served with the same. The other party, the Respondent, must then file an Answer within twenty days after service. If the Respondent fails to file an Answer, the Petitioner may make a motion through the clerk of court for a Default and proceed to a final hearing. Most counties require that the parties attend a four or five hour class dealing with children and divorce issues before setting a final hearing.

If an Answer is filed, the matter will often be set for a hearing to inform the Court as to the posture of the case and the status of discovery. One or both parties may have issues which must be addressed during the pendency of the proceedings such as child support, dissipation of assets, use and possession of the marital home and the like. Such issues can be addressed at any time during the divorce and such temporary relief may be ordered by the Court.

Often divorce cases are referred to mediation. If mediation fails, the case may proceed towards trial.

OTHER DIVORCE RELATED ISSUES: Florida is a “no fault” state and generally only one party needs to allege irreconcilable differences to proceed. Florida has jurisdiction over the divorce only if at least one party has lived in Florida six months prior to filing. Other complicated jurisdiction issues may be raised if the children live outside of Florida and/or the other spouse has not ever resided in Florida.

Where children are involved, the Court will usually name one party as the primary residential parent and award both parties shared parental responsibility. Shared parental responsibility is a court ordered relationship wherein both parents retain full parental rights and responsibilities with respect to their child, and in which both parents confer with each other regarding major decisions affecting the welfare of the child. The residential parent is usually responsible for the day to day decisions affecting the child. The non-residential parent is usually awarded visitation rights and, when the parties cannot agree, a court may order a set visitation schedule.

In those cases where there is a significant history of domestic violence, child abuse or other such circumstances, a party may request sole parental responsibility. In such circumstances the Court may award supervised visitation or none at all to protect the well-being of the residential parent and child. If there has been recent domestic violence against you by your spouse, you should consider obtaining a Restraining Order. Forms are available through the Clerk of Court; who can also assist with completing those forms. If you are unable to afford the cost of filing a Restraining Order Petition, you should request that the fee be waived and assessed against the abuser.

In all divorces involving children, the Court is required to award child support and such support is determined pursuant to Florida Statute. If you represent yourself, and if both parties have filed financial affidavits which are not in dispute, the Court may calculate child support at the final hearing. Courts tend to favor entering Income Deduction Orders, so that child support comes from the non-residential parent’s paycheck directly to the Clerk of Court, where it is then accounted and directed to the residential parent. This protects both parents with an accurate accounting history should the regularity of child support payments ever become an issue in the future. In addition, the Court may require that provisions be made or continued regarding health insurance, if reasonably available, and child care costs, if applicable. Such provisions will likely be calculated into the child support obligation.

Keep in mind that the vast majority of divorce cases are settled through mediation or through a Marriage Settlement Agreement negotiated between the parties and their attorneys. The length of time required to complete a divorce action depends upon the extent of the issues in dispute.

Please note that the above information is merely provided as a guide and in no way purports to be an all-inclusive list of issues that may arise in a divorce proceeding.

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