Dissolution of Marriage Means Divorce:
The word “dissolution” in law means the end of a legal entity or agreement. Florida statute chapter 61 provides the statutory authority and framework within which a dissolution of marriage occurs in the State of Florida. A more recognizable and much shorter way of saying the same thing is to use the word “divorce”. The prefix “dis” normally refers to a negative or reversing affect. The word “solution” when combined with the prefix “dis”, seems to be saying that it is the opposite of a solution. Solution would be being used in this context to mean “mixture”. When used in the context of a marriage, it makes sense that the mixture of the husband and wife is being undone.
What Does It Take to Get Divorced in the State of Florida?
There are two necessary elements to be proven in court in order to get divorced in Florida, (in addition to the prerequisite of being married). First, one of the parties to the marriage needs to have lived in the state for more than six months prior to the time that the petition for dissolution of marriage was filed. Second, they must swear that the marriage is “irretrievably broken”. It does not matter where the parties got married, as long as the marriage was legal where they were married. Florida will divorce the parties as long as those two conditions are satisfied. The Florida statutes lay out what documentation needs to be provided to the court in addition to the party’s testimony to prove that they have been a resident for more than six months. Your divorce attorney at Rohe Law can guide you through that process.
Proving that the marriage is irretrievably broken is relatively simple. Decades ago, “cause” had to be proven in order to get divorced. A party had to prove abuse, abandonment, neglect, adultery, etc., as a prerequisite to getting divorced. The government wanted families to stay together even though it may have been counterproductive. The pendulum may have now swung to the point where it is too easy to get divorced. However, the courts seldom inquire farther than having a party say that they no longer wish to be married. There was a time when courts required, and some courts still may require, that a party give a general statement as to why they believed the marriage was “irretrievably broken”. The courts do not typically want the gory details but would accept statements such as: “I would be happier apart than together”, “I don’t think that it is good for the children to live in the atmosphere of the two of us together”, etc.
Court Ordered Marriage Counseling:
The court also has the authority to order the parties to marriage counseling, but seldom exercises this authority. In the experience of Rohe Law, in the few instances where marriage counseling has been ordered, it is usually limited to just two or three sessions, after which there will be a re-evaluation. If the party who said it was “irretrievably broken” still states that is the case after the counseling, then the court typically will order no further marriage counseling. The majority of the time, even if requested, counseling is not ordered at all and the court takes the party’s claim that they want the marriage to end as sufficient.
Florida is a No-Fault Divorce State:
When one seeks to dissolve their marriage in Florida via a dissolution of marriage action, the court is not interested in determining what the cause of the marriage ending is. If the court needed to make findings as to why the marriage was irretrievably broken, there would be much more “mud-slinging” in court that would really have no benefit but to cause further damage. There would also be the difficulty of determining what came first, the chicken or the egg. For example, a party who eventually had an affair might claim that the reason they had an affair is because affection was being withheld by their spouse. The spouse who was withholding affection would then say the reason that they were withholding affection was justified because… and cause and effect could be batted back and forth to no end. Florida courts have decided that in a divorce case it is not necessary to prove grounds or determine whose fault it is that the divorce is occurring, but rather they just want to make sure they have jurisdiction to act over the case and to dissolve the marriage. The six-month residency restriction is a ripple-effect of the government’s much stronger position in the past to promote marriage. The state, even in ancient times, had a vested interest in a stable society and intact families have historically been seen as an indicator of societal stability. Florida did not want to be seen as a state that freely and liberally granted divorces, and in order to keep people from coming to Florida simply for the sake of getting divorced, our legislature put the six-month residency restriction in place.
When you hear one talk of Florida being a “no-fault divorce state”, it not only means that no further evidence needs to be proven as to the cause of the failure of the marriage, but it also means that the court is not going to be unfair to one party or the other because of the marriage ending. While there is some reference to adultery in the alimony section of chapter 61, the case law interpreting that statute typically limits the financial impact of adultery to just the topic of marital money having been spent in a way that was not in furtherance of the marriage- thus allowing the innocent spouse to recover one-half of what was spent (their half). Often times the cost of chasing down and figuring out how much money was spent exceeds whatever could be retrieved. As far as dividing the assets and debts, one party does not get a larger portion of the net worth because the other decided to end the marriage.
When Filing for Dissolution of Marriage Should I File First, or Let My Spouse File First?
Since Florida is a no-fault state and the court does not really care who decided that the marriage was over, or the cause of the marriage ending (unless it affects the children), there is no strike against you because you are the one that chose to file for divorce. The person who files the petition for dissolution of marriage gets to choose the date that the lawsuit is filed. This is an important date under Florida statute 61.075 which deals with equitable distribution of the assets and debts, as those which are classified as “marital” and have a presumption of being evenly divided, are those that accumulate between the date that the parties got married and the date the petition is filed (unless the parties enter into a written agreement to use a different date). Therefore, it is often advisable if the other party is spending assets at a high rate or accumulating debt at a high rate, that the petition be filed as soon as possible to limit the exposure to whatever declining net worth there is. The assets and debts that are divided are those that are determined by when they were earned and incurred not by whom they were earned and incurred.
The person filing the petition will pay a slightly higher filing fee to the clerk than the one responding to the lawsuit (if they file a counterpetition) and will also likely be paying the cost of a process server to serve the lawsuit on their spouse. Another consideration varies from Judge to Judge. The person who files first usually presents their case first in court. Therefore, if you have a Judge that makes up their mind earlier on in the case, it may be to your advantage to file first. If you have a Judge that waits to start making up their mind until the end, you may want to be the last one to present evidence, as that evidence may be fresher in their mind. Typically, we know human nature is to start deciding things early on, and therefore it may be, more often than not, best to go first. However, as Judges are randomly assigned, and we cannot predict which one is assigned, this is really a non-factor in choosing to wait to file a dissolution of marriage action.
If you are considering getting a divorce and want guidance through the decision-process and to get an analysis of the pros and cons of each possible path, book an appointment with Rohe Law to meet with one of our attorneys and discuss your potential dissolution of marriage action.