Basic Facts of Divorce

DISSOLUTION OF MARRIAGE: Dissolution is the process whereby a husband and wife end their marriage to each other. Dissolution of marriage (divorce) is from the bonds of matrimony (a vinculo). Florida does not have a divorce from bed and board.

PURPOSE OF THE STATUTE: The purposes of the Florida Dissolution of Marriage Statute are (1) to preserve the integrity of marriage and to safeguard meaningful family relationships, (2) to promote the amicable settlement of disputes that arise between parties to a marriage and (3) to mitigate the potential harm to the spouses and their children caused by the process of legal dissolution of marriage.

RESIDENCE REQUIREMENTS: In order to file a petition for dissolution of marriage, one of the parties in the marriage must reside or actually live in Florida for six months before the filing of the petition. This requirement prevents people from out of state from coming into Florida for the sole purpose of using the courts here to dissolve their marriage. Residency may be proved to the court by an affidavit of a second person other than your spouse to the effect that he or she knows of their own personal knowledge that you or your spouse have in fact been a continuous resident of the State of Florida for in excess of six months immediately prior to the filing of the dissolution of marriage action.

GROUNDS: Under Florida Law, a divorce or dissolution of a marriage will not be determined on the basis of the fault of one or both of the parties. There are only two grounds for dissolution of a marriage. These are: (1) the marriage is irretrievably broken or (2) the mental incompetence of one of the parties.

  1. IRRETRIEVABLY BROKEN: The usual reason used to obtain a dissolution is that the marriage has proved to be irretrievably broken. Irretrievably broken means that the parties have differences or disputes that they cannot settle and that these differences or disputes are so serious that they have caused the total and complete breakdown of the marriage. In other words, the parties' difficulties are so deep and substantial that no reasonable effort could solve them so that the parties can live together in a normal healthy marital relationship. There no longer has to be a "good guy" and a "bad guy". Even an offending spouse can bring the action successfully. All that has to be proven is that the marriage is dead (irretrievably broken). Since no question of fault is involved, the Court generally accepts a statement of one of the parties that the marriage is irretrievably broken without either party having to prove what these particular differences might be.
  2. INCOMPETENCE OF ONE OF THE PARTIES: The ground for the dissolution based on the incompetence of one of the parties is rarely used. It cannot be used unless the party alleged to be incompetent has been declared to be incompetent by a judge, according to a particular Florida Statute, for a period of at least 3 years. In addition there are other very technical matters that would have to be proved in order for the court to grant a dissolution of the parities marriage on the grounds of incompetence of one of the parties.

JURISDICTION: The circuit courts of the State of Florida have exclusive jurisdiction over dissolution of marriage proceedings except in the case of uncontested cases.

VENUE: The proper county to file a dissolution of marriage action is the single county in the State of Florida where both of the parties last lived together with a common intent to be married.

PAPERS TO BE FILED: A copy of the petition for dissolution of the marriage is filed in the courthouse of the appropriate county. In addition, as a separate attachment to the petition, the party is required to provide his or her social security number. A copy of the petition together with a copy of a summons is then served upon the other party to the marriage in the same manner as service of papers in civil actions generally.

SUBJECTS COVERED IN THE DISSOLUTION: In a dissolution action there are several matters that will usually be settled by the court - in addition to the dissolution itself. These include (1) how you will share parental and financial responsibility for your minor children after the end of the marriage, (2) how you will divide the assets (things that you and your spouse own) and liabilities (the debts and bills that you and your spouse owe) that you acquired during and as a result of your marriage, (3) your continuing support obligations to each other if any, (4) your continuing support obligations for the minor children of your marriage, (5) obligation for payment of attorney fees for your spouse (or their obligation for the payment of your fees), and (6) the desirability of restraining orders to stop a party from taking certain actions.

WAITING PERIOD: Ordinarily the Final Judgment of Dissolution of Marriage may not be entered by the Court until at least twenty (20) days after the date of filing the original Petition for Dissolution of Marriage. Additionally, when there are children under 18, or when either party denies that the marriage is irretrievably broken, the Court may order either or both of you to meet with a counselor, or continue the proceedings for a reasonable length of time not to exceed three (3) months to enable you to try to work out your differences. The court may also take such other actions as it feels is in the best interest of the children or of the parties. At the end of the period, if you or your spouse still want to dissolve the marriage, you must file a request that a final decree be granted. If the case is contested it may take up to 18 months (or longer) for the case to come to trial.

SUMMARY: To sum up, then, Basic Facts About Divorce include:

  • One of the parties must have lived in Florida for six (6) months.
  • A petition asking the court to dissolve your marriage is filed based on one of two grounds which are:
    • Irretrievable differences that have caused the breakdown of the marriage or
    • Mental incompetence of one of the parties.
  • The proper papers are served on your spouse.
  • After evidence is presented at a properly scheduled trial, the court settles such matters as:
    • How you will share parental and financial responsibility for your minor children after the end of the marriage,
    • How you and your spouse will divide the assets and liabilities acquired during and as a result of your marriage,
    • Your continuing support obligations to each other, if any,
    • Your continuing support obligations to support your children,
    • The obligation for payment of attorney fees for the other party, and
    • The desirability of restraining orders to stop certain actions.

Often the termination of your marriage involves complex questions of law and court procedure that may permanently affect your property and personal rights. Your attorneys at Rubinstein, Holz & King, P.A. will assist you in these matters in order to be certain that your valuable legal rights are not lost to you.