Where To File And When
Serving Divorce Papers: Picking the Right State to Divorce
In order to file for divorce, one of the parties absolutely must have been a resident of the State of Florida for at least six months prior to the filing of the divorce action to be served divorce papers. See Fla. Stat. 31.021.
You Have to Prove Residency for Divorce Papers
You can do this either with a current Florida DL that was issued at least 6 months ago, or the testimony of a third party witness who will testify that you or your spouse has been a resident for six months, or a voter ID card. In any case, make sure you line that up at the outset. There is nothing worse than going through months of the divorce process only to find the Judge will not grant the divorce at the end because of a technicality.
Make a photocopy or snap a picture of your driver’s license on the date you file! A divorce can take months or years, and you may lose your license or otherwise need to have a new license issued. That new license will show a date of issuance after the date of filing. Then, your physical license will not be useful in corroborating your residency!
Either Party Can Be a Resident
Divorce Petition: Interestingly, there is no requirement that the Petitioner must be a resident in order to process a divorce petition. That means if you a resident of Maine, but your spouse is a resident of Florida for the past six months, you would have subject matter jurisdiction to bring a divorce action in Florida to have a divorce petition. So what does it mean to be a resident? Residency is defined as actual presence in Florida combined with the intent to make Florida the place of residence.
FAQ: Five common questions in residency
- I am a resident for military purposes, but not according to your test above. Can I divorce in Florida?
If you were a resident of Florida previously, but you have not established a permanent residency anywhere else, you may still able to use Florida as your residence, even if it has been months (or years) since you last domiciled in Florida. However, residency can become a fact intensive question so be sure to review the unique facts or your case with your attorney.
- I live part time in another State. Can I divorce in Florida?
Maybe! The test is which place is the main place of the party’s household affairs or home interests. Does Florida pass that test for you? Note: One spouse’s residence does not necessarily follow the other spouses for purposes of residency. In certain cases with multiple homes, the Husband might be a resident of another state but the wife might be a Florida resident! It all depends.
- I was married in another State/Country/Planet. Can I get divorced in Florida?
Yes. There is no requirement that your marriage have occurred in Florida. The requirement is merely where the parties have resided for the last six months.
- I am not a US citizen. Can I divorce in Florida?
Yes provided the residency requirement is met. Again, there is a difference between being a citizen and being a Florida resident. Legal residency, not citizenship matters.
Jurisdiction for Support (Personal Jurisdiction)
If you are going to ask for alimony or attorney’s fees in your divorce, then you will want to be sure the Court has personal jurisdiction over your spouse (The Court has personal jurisdiction over you: you are filing the divorce, so you are “consenting” to the court’s personal jurisdiction) for a divorce proceeding.
The Court will have jurisdiction over your spouse in the following situations:
- Your spouse is a Florida resident: If your spouse is a Florida resident, then the Court will have personal jurisdiction provided you have perfected service on them.
- Your spouse is not a resident: If your spouse is not a resident, then the Court will have personal jurisdiction over your spouse if you both maintained a marital domicile in Florida at the time you filed, or your spouse resided in Florida proximately preceding the action, whether or not you and your spouse were living together at the time.
Now if you know Florida is the right state to file your divorce matter, how do you know which County, or Clerk of the Court, to File the divorce papers?
Picking the Right County
The County you file your divorce is the “venue” of the action. Generally speaking, you have proper venue in the county that:
- The County where the Husband and action have last lived together as Husband and,
- The County where the Defendant resides, or
- The County where the property in litigation is located.
NOTE: This general venue statute does not apply to non-residents, who can be sued anywhere in the State. In other words, if you divorce your Husband in Florida, and your Husband has since left the State to take up residence in Iowa, then he cannot contest whatever venue you choose in Florida to bring the action.
Agreement to Venue: Both you and your Husband can agree to divorce in a different county if you want. For example, two people who live in Pasco County, Florida, but commute to work to Hillsborough County, may agree to bring the action in Hillsborough if they wish for convenience sake.
The Divorce Attorney Consultation: The majority of divorce cases require a lawyer, although there are exception, for example no asset short term marriages where the parties agree in advance to everything. However, in virtually all cases, a party seeking a divorce should sit down with an attorney for a consultation to discuss practice, procedure, and an application of divorce laws and rules as applied to the facts of his or her case.
Most attorneys will charge a fee. Usually, a consultation will run a few hundred dollars, and last between 45 and 90 minutes. When setting a consultation, some lawyers will outline for you in advance what you need to bring. In any case, bring information on income and expenses and values of major assets and debts.
What To Do If You Got Served Divorce Papers
Opening your door to find a process server delivering you divorce paperwork is unnerving. It can be downright horrific if you had no idea the divorce papers were coming.
Unfortunately, you can’t afford to hide from divorce paperwork because you got served divorce papers. That’s because being served with paperwork means that you have deadlines that you must adhere to in your divorce. Below we get into what it means to be served with divorce paperwork and what you need to do going forward.
How You Have Gotten Here
Simply put, if you have been served with paperwork your spouse has filed paperwork with a Florida Court asking for divorce. The process goes something like:
- Your spouse has hired a lawyer to draft a Petition for Divorce and the accompanying legal documents, or else has done so on their own.
- Your spouse or spouse’s attorney has filed the paperwork with the clerk of the court.
- One of the documents filed is a summons. This document is signed by the clerk of the court and returned to the person who started the case.
- The person who started the case then took the summons along with a copy of all the divorce paperwork, and gave it to a process server.
- The process server then found you and served the paperwork on you.
Understanding The Documents Served On You
The divorce papers you received can be intimidating. Let’s go through them:
- The Summons: The summons is a legal notice to you about the pending divorce lawsuit. It is the first piece of paper you read and the first document you have seen that notifies you the lawsuit is underway. The summons will inform you that you have 20 days to answer the petition you have been served with. The summons will tell you where to file your answer and who to serve with copies.
- The Petition for Divorce: The Petition for Divorce is the document that requests the court grant a divorce. The petition also lays out the issues to be resolved in your case, which is often some (or all) of the following: asset division, parenting, alimony, child support, and fees and costs. The Petition for Divorce is often a scary document, as your spouse may be asking for everything including “the kitchen sink.” However, it’s best to take a deep breath — this is a “say it or lose it” sort of thing. If your spouse does not ask for it now, he or she can’t come back for it later. As a result, people often ask for their “best day in court” in the initial Petition for Divorce even if they are willing to resolve the case in a much different matter later.
- The UCCJEA Affidavit: If you have kids, then your spouse is required to file this Uniform Child Custody Jurisdictional Act Affidavit, or UCCJEA. Just because the court your case was filed in is the right court for the divorce does not mean it is the right court for the children’s custody to be decided. So, the person who files the case must swear to the homes of the minor children for the last five years to make sure the child custody determination is in the right place.
- The non-military/military affidavit: There are different rules to the divorce process depending if you, the person served, is currently an active member of the armed forces.
- Notice of Social Security Number: Everyone has to swap their social security number in a divorce case.
- Financial Affidavit, Parenting Plan, Letters from Opposing Counsel, Settlement Agreements (Sometimes): Sometimes the other lawyer will serve these additional documents on you as well, but these are not required and are much less common.
What Happens Next After Being Served
First, understand that the clock begins ticking after you are served. That process server will file an affidavit of service of process with the clerk of the court letting them know the day and time you were served.
That means the first thing you will need to do is let the court know you intend to participate in the divorce. That is done by filing an answer to the divorce within 20 days of the date of service.
All of the statements or allegations made in the petition must be answered. In the answer, you tell the court whether you admit or deny the statements made in the Petition for Dissolution.
WHAT HAPPENS IF I DON’T ANSWER?
You can choose not to answer the petition, but this is rarely a good deal. If you do not answer the court will put you in default. When your spouse goes to court to finalize the divorce, he or she can pretty much ask for whatever he or she wants. After all, you didn’t seem to care enough to play along, so the court won’t care either.
Most people hire a lawyer to represent them in the case in the days or weeks after getting served. You have some time to hire a lawyer, so you don’t need to rush the process. However, you will want to have a lawyer hired at least a few days prior to the answer being due so that your attorney has plenty of time to answer your case and do it right.
Best Practices After You Have Been Served
- Don’t Panic: An office or process server served you paperwork, potentially in front of people you know. You may not have known this was coming. And your spouse seems to want “everything.” It may seem scary and overwhelming, but stay calm and don’t panic. The situation is so difficult because it is a new situation, and your private affairs are brought into public. With that said, act calm right now so that you don’t do anything to hurt your case. Trust us, it is almost never as bad as it seems.
- Refrain from Saying Nasty Things to Your Spouse: Time and time again, the served spouse responds by shooting off angry texts to their spouse. Or even worse, confronting their spouse and making a scene. But remember — the spotlight is on right now. So behave accordingly.
- Educate Yourself on the Process and the Law: Without question, it is the spouses who educate themselves on the law and process who come out of the divorce the best. Both financially and emotionally.
- Seek the Counsel of a Friend: If this new reality is causing an emotional toll on you, then turn to your support network. Speak to family and friends instead of hiding the issue.
Consult with the right professionals: Consult with professionals to help you through the process. Obviously, contacting a divorce law firm early on in the process is important. It will be the lawyer who will guide you through the legal process. But underutilized professionals that can make a difference include divorce financial analysts and forensic accountants. Also, in some cases seeking the guidance of a mental health professional.