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
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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