Divorce FAQS


Florida is a no-fault state for divorce. The only claim required in a divorce petition is that the marriage is “irretrievably broken.”*    In fact, the court may dismiss your case if you incorrectly claim grounds like “adultery,” “mental cruelty,” or “abandonment.”

* Section 61.052(1)(a), Florida Statutes.   Section 61.052(1)(b), Florida Statutes, also allows you to claim the mental incapacity of a party.

This website is packed with information about divorce in Florida.  If you would like to find out more, a good place to start is here:  Divorce.

A Florida divorce may be granted on the 21st day after filing the case.

Under Section 61.19 Florida Statutes, “no final judgment of dissolution of marriage may be entered until at least 20 days have elapsed from the date of filing the original petition for dissolution of marriage.”  (Could that wording be any more confusing).  Under the Civil Rules rules, the date a petition is filed is not counted.   In this instance the trigger date is the day the Petition is filed.  The statute says one must wait “until at least 20 days have elapsed.” So, the Final Judgment  may not be entered on the 20th day, because that day has not “elapsed.”   To be safe, the earliest date to enter a Final Judgment is 21st day after the day petition was filed.

Is there a way Around the 21 day requirement?

A  Final Judgment may be entered sooner than the 21st day to prevent an “injustice.”  I have been unable to find a case interpreting what would qualify as an “injustice,” so a lot will depend on the judge assigned to the case.

How often are divorces finalized on the 21st day?

Divorces are rarely finalized on the 21st day.  The most common reason for delay is that the parties have not yet agreed about the the terms of their divorce.  Litigating a case all the way through trial can take a year or longer.  (Divorce Litigation Guide).  However, even if you and your spouse are in complete agreement at the start, there are a many reasons why it will likely take longer than 21 days to complete the divorce.  For example a required parenting classes may still need to be completed, or there may not be an available court date.  If you represent yourself, a court facilitator will need to review your court filings and then schedule a hearing for some date in the future.  Finally, even if you agree, you may need to work out the final wording on complex issues like retirement plans, the sale of assets, and the relocation.

The short answer is that you probably can’t.   Annulments in Florida are granted based on “capacity” issues, like age or bigamy.   The fact that a marriage is extremely short term, is not grounds for annulment.  To request an annulment you must demonstrate a reason that prevented a valid marriage.  To put it differently, if you have a valid marriage, the proper procedure is a divorce, and not an annulment.  (The technical name for a divorce in Florida is a “dissolution of marriage”).

Here are some of the reasons that may prove grounds for annulment:

  1. Lack of legal capacity (You are already married to someone else)
  2. Age (One of the parties is too young)
  3. Force (Think “Princes Bride”)
  4. Statutory prohibition (You can’t marry your sister)
  5. Etc.

Here are some reasons that will not prove grounds for annulment

  1. Unhappiness with the marriage
  2. Infidelity
  3. The fact that the marriage is short term in nature
  4. Religious differences
  5. Etc.

If you want to read more on this subject, two of the major cases discussing Florida annulments are:  Kuehmsted v. Turnwall, 103 Fla. 1180 (Fla. 1932), and Sack v. Sack, 184 So.2d 434 (Fla. 3d DCA 1966).

The short answer is that you probably can’t.   Annulments in Florida are granted based on “capacity” issues, like age or bigamy.   The fact that a marriage is extremely short term, is not grounds for annulment.  To request an annulment you must demonstrate a reason that prevented a valid marriage.  To put it differently, if you have a valid marriage, the proper procedure is a divorce, and not an annulment.  (The technical name for a divorce in Florida is a “dissolution of marriage”).

Here are some of the reasons that may prove grounds for annulment:

  1. Lack of legal capacity (You are already married to someone else)
  2. Age (One of the parties is too young)
  3. Force (Think “Princes Bride”)
  4. Statutory prohibition (You can’t marry your sister)
  5. Etc.

Here are some reasons that will not prove grounds for annulment

  1. Unhappiness with the marriage
  2. Infidelity
  3. The fact that the marriage is short term in nature
  4. Religious differences
  5. Etc.

If you want to read more on this subject, two of the major cases discussing Florida annulments are:  Kuehmsted v. Turnwall, 103 Fla. 1180 (Fla. 1932), and Sack v. Sack, 184 So.2d 434 (Fla. 3d DCA 1966).

The last county where the couple lived together, with a common intent to remain married.

The term the court uses to describe the correct county to file a case is “venue.”

The parties may consent venue, if the court has subject matter jurisdiction for the divorce. So, if both parties agree, a divorce case may be filed in a different county. For example, a divorcing couple might agree to file in an adjacent county for privacy reasons. However, if the responding party objects, the case will be moved from the “wrong” county back to the county where the couple last lived together.

Or as the court puts it, “The law is well settled in Florida that a cause of action for a dissolution of marriage arises in the Florida County in which both parties last resided with a common intent to remain married.”

In addition to filing the case in the correct venue, the court also needs “subject matter jurisdiction” to enter the divorce, and “personal jurisdiction” over the opposing party. The subject of jurisdiction is complex, and beyond the scope of this FAQ

The short answer is when the child turns 18 years.

There is a persistent myth that at age 12, a child can change custody based on the child’s preference.   Florida law does not allow a child to pick a custodial parent at a certain age.  Obviously, once  a child is turns 18, and is an adult, the adult child is free to live where he or she wants.

Parenting Plans Determine Child Custody in Florida

In Florida, a custody order is called a Parenting Plan.  A Parenting Plan addresses all custody issues, including decision-making and time-sharing.  (An overnight schedule).  The court is allowed to consider a child’s preference in creating a Parenting Plan.  (If the child is sufficiently mature).   However, the court will not change an existing Parenting Plan based solely on a child’s request for a change after reaching a certain age.

In Florida a parenting plan can only be modified if there has been a “a substantial, material, and unanticipated change in circumstances” and a finding “that the modification is in the best interests of the child.”  The fact that a child has grown older is not “unanticipated,”  so a child simply getting older cannot form the basis for a change in custody.

Parents are always free to cooperatively adjust the time-sharing schedule as a child grows older, and when the child’s needs change.  And, there is no question that children’s needs do change as they get older.

For example, in Sarasota most high schools start very early in the day, and high school extracurricular activities can run late into the evening.  From a practical standpoint,  it may be best if the child spends more time during the week with the parent who lives closest to the school.  For example, one parent might be better equipped to help a child struggling with homework.  So, it may be best for a child struggling in school to spend more time with that parent who can provide the most help.  These changes can be informal, and temporary, as long as both parents agree.

Suggested approach to modifying custody as a maturing child’s needs change

Even though you might not “win” a custody modification, it may still be best for your child to formally modify the Parenting Plan based on your maturing child’s changed needs.  My suggestion is first discuss your idea of changing the Parenting Plan with the child’s other parent.  If that does not work, or if you know from past experience that an informal conversations will not work, my suggestion is to mediate or use the collaborative divorce model.  (The collaborative divorce model can be used for a custody modification).  Only if all else fails, do I suggest considering litigation.

The short answer is no.*   Under Florida law, assets acquired during the marriage by either spouse, whether individually or jointly, are “marital.”   (Unless an exception applies).  The same is true for liabilities.

So, in the case of marital assets and debts “title” does not really matter.  For example, a car that is titled to just one spouse, but which was purchased during the marriage,  would likely be marital.  Likewise, a credit card is in just one spouse’s name would likely be considered marital if the debt was acquired during the marriage.

There are exceptions to this rule of thumb.  For example if an asset was received by one spouse  as a gift or inheritance, then the asset is probably nonmarital (separate).

In some cases,  assets and liabilities can have a mixed characterization – partially marital and partially nonmarital.  For example, a retirement account may have a mixed characterization, if some of the retirement benefits were earned prior to the marriage, and and if some of the benefits were earned during the marriage.

*  The characterization of assets and debts can be the subject of major disputes in Florida divorce cases.  Before agreeing to any division of assets and debts in a divorce case, you should consult with a lawyer to make sure that the characterizations are correct, and that no exception might apply to your specific situation.

If you would like to research how Florida family law defines marital and nonmarital by statute, I have provided a link to Section 61.075, Florida Statutes.

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