How to File for Divorce in Florida
Filing for divorce in Florida is regulated by a statute known as Chapter 61 – Dissolution of Marriage. There are many rules regarding parenting, support, and division of property. A large number of divorce filings in Florida are done by self-represented parties. An equal number of divorce filings have one side or the other represented by an attorney. The Law Firm of Ayo and Iken can provide complete representation or limited services – only when you absolutely need help.
General Requirements for a Florida Divorce
The State of Florida is a no fault state. All that really means is that either spouse has the absolute right to file for divorce – regardless of fault or bad behavior. Neitherspouse can refuse to grant divorce because it is the sole right of either spouse.. Beyond that initial principle, the Florida divorce statutes lay out the requirement for someone to move forward with their divorce filing:
One spouse must be a resident of Florida for 6 months prior to filing for divorce. This can be quickly proven with a Florida driver’s license with an issue date at least 6 months prior to filing. If you do not have a driver’s license or it does not have an acceptable date, another person can sign a sworn statement as to your residency.
The marriage must be irretrievably broken – in other words, in the opinion of either spouse the marriage is at a dead end and cannot be salvaged. This is the most common ground for divorce filings in Florida. It is also the ground for divorce you will most likely use.
One spouse suffers a mental incapacity for at least 3 years prior to the divorce filing. In practice, mental incapacity is rarely ever used as a reason for a Florida divorce.
Once the divorce requirements are satisfied, you can file for divorce, or as Florida calls it – Dissolution of Marriage.
Location for a Divorce Case
There are many complex rules and statutes that determine where the proper place is to file for divorce. The proper state and county to file a divorce is both a simple and complex decision. For the vast majority of people the proper location is a simple determination: the state and county where the couple last resided as husband and wife. Other people have a more complex situation. If there are children, and those children have recently resided in another state – that state would be the proper place for children’s decisions. If one spouse is outside of Florida and the other is a Florida resident – the proper state would be determined by an analysis of various facts in the case. Some important facts in that decision include a list of specific issues to decide, the degree of contact with Florida that the non-residing spouse has had in the past, and the content of any related court proceedings. The resulting answer may be confusing and subject to interpretation. Filing a divorce in the wrong state can result in lost opportunity and wasted money. Some cases may even involve filing in two states and limiting issues in each state to what is legally allowed there.
Ayo and Iken can analyze the specific facts of your case to determine the proper place to file for divorce. We can do this on a limited consultation basis, and can also consult with out-of-state attorneys to get the best advantage for your situation.
Filing a Florida Divorce Case
A divorce filing requires a petition, financial affidavit, and various supporting documents. The divorce petition is similar to any other type of lawsuit. But in this particular situation you are suing your spouse for a divorce. Like any other type of lawsuit, you must prepare all your divorce paperwork, file it with the clerk of court, and then arrange to have a process server personally hand everything to your spouse. You must have a Summons included with the divorce petition, and a certified process server must always personally serve it on the opposing party.
Every county has a slightly different procedure on filing requirement. But one thing in common between various counties is the filing fee, currently $408 as of this writing, and the summons issuance fee, currently $10 as of this writing. You will also incur a cost for the process server.
Some counties immediately schedule a case management conference upon filing your new Petition for Dissolution of Marriage. Other counties wait for you to schedule necessary events. The case management conference (CMC) is primarily a way for a judge to see the current “status” of the case and to push it along if possible. Major decisions are normally never made at the CMC. But if your case is uncontested, you have all your paperwork filed, and the judge is in agreement, you may be able to finalize your case at the CMC.
Our attorneys can provide you with a “paperwork-only” service for a modest fee. That service includes attorney-prepared filing documents individually drafted for your situation. The documents are supplied to you ready to sign and file with the court.
Serving a Florida Petition for Divorce
This section is repeated because this is the most frequent way people get it wrong. You cannot mail, FedEx, or email a Florida Petition for Dissolution of Marriage. That is not to say that you cannot do any of that. But unless you personally serve the documents, the case will not proceed forward.
You must arrange to have the petition served on your spouse by a certified process server, or a deputy sheriff. That person must also prepare documents to file in the court file certifying the petition was properly served.
A petition that was not properly served will sit in the court file for eternity – or at least until the court gets around to dismissing the petition. This is a very important step that you cannot do wrong or bypass.
Deadlines After Serving the Petition
The person receiving the petition has 20 days to file their answer. That answer may contain a Counter Petition that lists everything the responding spouse wants. The Counter Petition for divorce also requires a filing fee. Unlike the petition, the counter petition may be mailed or sometimes emailed. It is extremely important the answer is filed on time. Failure to do so may result in important rights that are permanently lost.
The 20-day deadline encompasses calendar days. In other words, you must look at the calendar and count forward 20 days. Weekends, and holidays are part of the 20 days. Instead of guessing it is best to file your answer early.
Financial Disclosure / Discovery
Florida has a system that requires all information to be visible, exchanged between the parties, and available on request. This includes anything that would be useful to the case, and of interest to the judge. A divorce filing automatically requires both spouses to hand each other financial affidavits – a complete roadmap of personal finances. There is also an automatic requirement to provide some basic financial documents to the other spouse. That requirement includes tax returns, paycheck stubs, retirement statements, etc.
Each spouse has the right to request more documents. Almost anything is fair game as long as those requests relate to the case. In general the requested documents must be provided within 30 days of the request. Upon request the court will enforce document requests. If you are at this point in your case, it means the divorce is proceeding along its normal course.
Mediation in a Divorce Filing
If you filed for divorce in Florida, you can count on going to mediation. The court will order it and you must attend that mediation before going any further in your case. Most court systems have an internal mediation department. If that is the case in your situation, you may benefit from having the mechanical part of setting up mediation performed for you by the mediation department. Some smaller counties do not have a mediation department and you will have to do all the legwork yourself.
Our attorneys can provide representation for mediation–only upon request. Part of our service will be to help select a mediator, schedule mediation, and then provide advocacy and advice during the mediation.
Final Hearing for Divorce
The vast majority of people end up settling at mediation. That involves creating and signing an agreement that details the outcome of all formerly contested issues. If this describes your situation, you will eventually head to a final hearing. If there are no attorneys on your case, an internal court department may schedule the hearing for you. If there is at least one attorney, that attorney will control and arrange scheduling.
Walking into a final hearing with a signed mediated agreemself-representednon-stressful event. Everyone is happy when you have an agreement. That includes soon-to-be ex-spouses, the judge, and the bailiff. Attorneys involved with the case almost always exhibit a good mood when the case is settled. The final hearing will probably take 10 minutes at the most.
Final Trial for Divorce
If you did not settle your case – it will eventually proceed to trial. Trial can last anywhere from one hour to one week. It is a grueling, tiring, and expensive process. Now is the time to come in and see us if you did not have an attorney up to the time trial is scheduled. Prepping for trial takes time so the sooner the better. A divorce trial can shift hundreds of thousands of dollars between the two of you over the next decade. Parenting rights can be gained, lost, or damaged permanently. If your case is going to trial, now is the time to break open your wallet, hire a good attorney, and to stand up for the things most important to you.
If you filed for divorce in Florida and you learn your case is scheduled for trial, The Law Firm of Ayo and Iken can provide an attorney that will quickly learn your case, work with you on an effective presentation, and rise to the occasion at the most critical time in your live.
Do You Need an Attorney to File for Divorce?
Definitely not. It is everyone’s right to be his or her own attorney. But at some point you must ask yourself if it is worth the risk. The consequences of a poor decision or lack of knowledge can outweigh the cost of an attorney by many times. Sometimes you can afford limited help from an attorney and it will make all the difference in your case. You have to consider your priorities and the importance of your goals.
Filing for divorce in Florida can be incredibly simple, or incredibly complex. It really depends on what you have to lose or gain. The court system does not seem to be designed for self represented people. It is a system designed by attorneys and run by attorneys. If you have kids, large sums of money, or important personal possessions at stake, give us a call and we can discuss your options and cost alternatives. Our consultations are free and you will meet with an experienced Ayo and Iken divorce attorney.