The Legal Process
Sometimes, the obvious may be overlooked. When filing for divorce, my office will not simply fill in forms. Divorce law has a procedure which includes considerations of “due process”, “venue” and “jurisdiction”, to name a few. The following is a brief outline of these considerations, and is intended to give you a better understanding of the divorce process:
A. Filing and Service of ProcessThe divorce process is commenced with the filing of a Petition For Dissolution Of Marriage with the Clerk of Court and payment of the required filing fee. Generally, a summons will be issued by the Clerk at the time of filing. The issued summons and a copy of the Petition (and other papers) are then served upon your spouse by a person appointed by the Court (such as a Sheriff or private process server). Your spouse then has twenty (20) days from the date of being served in which to respond to a Petition.
B. VenueThe divorce proceeding must be filed in the county where the parties last resided together. If neither party resides in that county, then the divorce proceeding may be filed in the County where you currently reside. A spouse may move the Court to transfer the action to his or her county if that county is more convenient (to where the witnesses and other evidence may be located).
C. Jurisdiction(1) Residency. You may seek a divorce in Florida if you have been a permanent and continual resident for at least six (6) months preceding the filing of your Petition. This can be proven via a driver’s license, a voter identification card or the testimony of a corroborating witness.
(2) Personal jurisdiction. Typically, both you and your spouse may be residents of Florida. But what if your spouse is a resident of another state and you are seeking some form of affirmative relief such as spousal support? In order to obtain such relief against your spouse in Florida, you would need to allege and prove your spouse’s contacts with Florida (what is referred to as "long arm jurisdiction").
(3) Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) deals with child custody and visitation (what is now legally known as a “time sharing arrangement” within a “parenting plan"). If you and your spouse have a child or children together, you will need to file a UCCJEA Affidavit. The physical proximity of the child(ren) in Florida is a consideration but is not solely determinative as to whether Florida has subject matter jurisdiction over the child(ren). Questions to be considered will include, among others: Where has the child lived for the past six (6) months? Has any court in another state made any rulings regarding the child(ren)? Are there any exigent circumstances such as domestic violence or abuse?
(4) Uniform Interstate Family Support Act (UIFSA). If you are seeking to establish child support in Florida and your spouse or the parent of your child is a non-resident, Florida can only establish and enforce that parent’s child support obligation if it has "personal jurisdiction" over your spouse or other parent. To determine personal jurisdiction, certain questions will need to be addressed, such as and without limitation: Did your spouse or the other parent reside at one point with the child in Florida? Did your spouse or other parent reside in Florida and provide prenatal expenses or support for the child?
D. DiscoveryThe Florida Family Law Rules of Procedure provides for mandatory financial disclosure (in particular, Rule 12.285). Accordingly, the parties are required to file, at the very least, a financial affidavit setting forth his or her average monthly income and expenses, assets and liabilities. You may also take the deposition of your spouse or other material witnesses, including experts, to learn information about the relevant issues.
E. MediationThe Courts require the parties to attend mediation prior to certain temporary hearings and a final hearing/ trial. Prior to attending mediation, you and your spouse should have exchanged financial information including your respective financial affidavits and supporting documentation. Mediation is an opportunity to settle all or part of the issues. During mediation, the parties will "caucus" (meet with the mediator in separate rooms) and discuss his or her position. The mediator is certified and is generally an attorney who is versed in the law and is knowledgeable about the particular judge assigned to your case. If the parties reach a settlement, then that settlement will be put into written format and signed by both parties at the mediation conference.
* The foregoing is not intended as legal advice. If you are in need of legal advice, please contact my office at (727) 895-5858 for a free initial consultation.