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Florida Uncontested Divorce

This information is an overview of the uncontested Florida divorce filing process and a summary of the divorce papers that are typically filed with the family law or domestic relations clerk. This overview is not intended to be an exact step-by-step guide for those "do it yourself divorce" filers, due to the fact that many cases are unique and the overview presented here is often not the only method of obtaining an uncontested divorce in Florida.

Florida is one of many states that has abolished fault as a ground for divorce. In Florida, the word for divorce is dissolution.

In Florida, a dissolution requires that one or both spouses be a resident of the state for at least six months before the action begins.

By statute, dissolutions are either simplified or regular, but these actions may take one of four paths as they develop: 1) simplified, 2) uncontested, 3) default and 4) contested.

All of these routes require some of the same forms and each becomes generally more complicated.

Many couples avail themselves of the Simplified Dissolution of Marriage procedure because they can file without the assistance of a lawyer.



To use the simplified procedure, the couple must meet 10 requirements. These are:

> One or both must be a resident of Florida for at least six months.
> Both must agree to cooperate and sign all necessary papers.
> Neither may have minor or dependent children. (A minor is one under 18 years. A dependent may be one over 18, but still dependent because of disability. Children from a previous marriage are not considered as long as the current spouse has not adopted them.)
> The wife is not pregnant.
> Both spouses have agreed about the division of assets and liabilities.
> Neither spouse wants alimony.
> Both spouses agree to give up the right of a trial or an appeal.
> Both spouses agree that they do not need to provide each other with any financial information other than that which is included in the Family Law Financial Affidavit, which is one of the forms filed in this action.
> Both appear at the court clerkís office to sign the Petition requesting the dissolution.
> Both spouses attend a short court hearing.

This routine begins when the couple files a Petition for Simplified Dissolution of Marriage in the Circuit Court of their county, normally the county of residence. The petition identifies the couple as husband and wife, and it is filed jointly. It states that the marriage is "irretrievably broken"; that the wife is not pregnant; that the wife does nor does not want her former name restored; that they both agree to appear at a divorce hearing; that they agree to waive rights of appeal.

The Petition is filed with a Civil Cover Sheet, a simple form which identifies the parties and describes the type of action -- divorce.

Attached to the Petition are the Family Law Financial Affidavits, one for the husband and one for the wife, and the Marital Settlement Agreement, which the couple have often negotiated themselves, with or without outside help.

The Family Law Financial Affidavits are either the short or long form, depending on whether a spouse has an annual income of $50,000 or less (short form) or $50,000 or more (long form).

The Marital Settlement Agreement identifies the assets and liabilities of the husband and wife and the division and distribution of all property, and it may include additional sheets dealing with the particular circumstances of the coupleís property distribution. It establishes the terms and conditions of the property settlement.

At the time of filing, the spouses also must complete a Notice of Social Security, which provides the court with the Social Security numbers. This form is not attached to the Petition.

Some counties also require the parties to complete a Notice of Current Address, which provides the current addresses and telephone numbers of the parties.

At the time of the divorce hearing, the couple presents the court with the Final Judgment of Simplified Dissolution of Marriage. At the hearing, the spouses also complete a Final Disposition Form, which is a record of the disposition of the action.

At the same time, the spouses must also verify Florida residency, and that at least one of them has been a resident of Florida for at least six months prior to initiating the action. This verification can be done by a Florida driverís licence, state identification card, voter registration card or by Affidavit of Corroborating Witness.

The Simplified Dissolution can take as little as three weeks from the filing to the hearing that ends the marriage. Many couples, learning how easy it is, work harder to iron out differences that might prevent them from using it. These differences often involve the distribution of property.

If for any reason the couple cannot qualify for a Simplified Divorce -- e.g., there are minor children -- both may sign the Marital Settlement Agreement, and one spouse signs an Answer, Waiver, and Request for a Copy of Final Judgment of Dissolution. The Answer, Waiver, and Request for a Copy of Final Judgment of Dissolution move the divorce along in much the same way as a Simplified Dissolution. The party signing the Answer, Waiver, and Request for a Copy of Final Judgment agrees to the action. Going this route eliminates the need for a Summons and Service of Process.

If that is not possible, however, the couple may file for an uncontested divorce.

Couples can use this routine when they

> want the divorce,
> agree about the terms and conditions of the distribution of assets and liabilities,
> agree about alimony (how much and for how long),
> agree about child custody, visitation and child support.

In this regime, one spouse is the Petitioner, who files the papers necessary for the action, and the other is the Respondent, who may or may not answer the action. If, for example, the other spouse does not oppose the divorce but will not actively cooperate, a Summons must also accompany the Petition for Dissolution. The Summons informs the respondent that he has 20 days to file an answer to the petition under pain of a default judgment against him or her.

To begin a divorce on this route, the Petitioner files a Civil Cover Sheet with one of three forms called a Petition for Dissolution of Marriage, depending upon the circumstances of the couple. The forms are a) Petition for Dissolution of Marriage with Dependent or Minor Children, b) Petition for Dissolution of Marriage with Property but No Dependent or Minor Children or c) Petition for Dissolution of Marriage with No Dependent Children or Property.

If minor children are involved, the Petitioner also files a Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) Affidavit, which identifies the children, their residences and information about custody proceedings. If child support is a consideration, a Child Support Guidelines Worksheet must also be completed, usually as part of negotiations toward a settlement.

The petitioner must file a Family Law Financial Affidavit (long or short form), Notice of Social Security Number, Notice of Current Address and Marital Settlement Agreement. The Family Law Financial Affidavit is normally accompanied by the Certificate of Compliance with Mandatory Disclosure, which certifies that the other spouse has provided required financial information to the Petitioner.

Depending upon the circumstances, the Petitioner may file the Standard Family Law Interrogatories for Original or Enforcement Proceedings. These interrogatories enlarge the financial information contained in the Family Law Financial Affidavit, and they are made under oath. Interrogatories require that the Respondent complete a Certificate of Compliance with Mandatory Disclosure and the Petitioner files a Notice of Service of Standard Family Interrogatories. This notice becomes part of the record.

Once all the requisite paperwork is filed, the Petitioner must schedule a divorce hearing for the final judgment. The hearing is very brief and usually takes no more than ten minutes.

Filled at the divorce hearing are the one of three versions of the Final Judgment of Dissolution of Marriage, depending upon the circumstances of the couple: a) Final Judgment of Dissolution of Marriage with Minor Child(ren) (Uncontested); b) Final Judgement of Dissolution of Marriage with Property but no Dependent or Minor Child(ren) (Uncontested), or c) Final Judgment of Dissolution of Marriage with No Property or Dependent or Minor Child(ren) (Uncontested).

For a variety of reasons, sometimes one spouse permits a marriage to dissolve by default, for example, by not signing the Marital Settlement Agreement but without actively opposing the divorce.

In the case of a default, the Petitioner prepares all of the paperwork associated with an uncontested divorce, including the Civil Cover Sheet; Petition for Divorce (using the appropriate form depending upon whether there is property or children); the Family Law Form (long or short); the Notice of Social Security. At the divorce hearing, he or she prepares the appropriate Final Judgment (either with Dependent or Minor Child(ren) or With Property but No Dependent or Minor Child(ren)); and the Final Disposition Form.

As mentioned above, a couple can arrange a default divorce when both may sign the Marital Settlement Agreement, and one spouse signs an Answer, Waiver, and Request for a Copy of Final Judgment of Dissolution. The Answer, Waiver, and Request for a Copy of Final Judgment of Dissolution move the divorce along in much the same way as a Simplified Dissolution. Going this route eliminates the need for a Summons and Service of Process.

However, when a Respondent does not file an Answer, Waiver, and Request for a Copy of Final Judgment of Dissolution, or his own answer, or a Family Law Financial Affidavit, or sign a Marital Settlement Agreement with 20 days of the recipient of the Petition, he or she is in default. When this happens, the Petitioner must file a Motion for Default. The court, in turn, declares a default against the Respondent.

Depending upon the situation, the Petitioner may have to file one or more additional forms. For example, if a spouse refuses to comply with the divorce by not filing an answer, waiver or request, the Petitioner may be required to certify that his or her spouse in not on active duty in the military. Servicemembers enjoy certain protections from court action under the Servicemembers Civil Relief Act. This certification requires a Nonmilitary Affidavit and may also require a Memorandum for Certificate of Military Service when the Petitioner is uncertain if his or her spouse is in the military.

Divorcing a spouse who cannot or will not be found requires that the Petitioner make what is called a "diligent search." To do this, the Petitioner files an Affidavit of Diligent Search and Inquiry after he or she has made an exhaustive effort to locate his or her partner. That search includes:

> a Freedom of Information inquiry with the United States Post Office about current address and any relocations,
> contracting the last known employer,
> checking with unions the Respondent may have worked from,
> contracting regulatory agencies, including occupational and professional groups,
> contacting relatives,
> attempting to ascertain the Respondentís possible death,
> checking telephone listings,
> making Internet searches including http://www.switchboard,
> contacting law enforcement agencies,
> checking state patrol records in the state of the Respondentís last known address,
> checking Title IV-D (child support enforcement) agency records in the state of the Respondentís last known address,
> checking hospitals in the last known area of the Respondentís address,
> contacting utility companies,
> writing letters to the Armed Forces of the United States and their response,
> contracting tax assessors in the area of the Respondentís last known address.

If these steps are not successful, the Petitioner then prepares a Notice of Action for Dissolution of Marriage. This is published once a week for four weeks in a newspaper that specializes in publishing classified legal advertisements. This step is called Service by Publication. Assuming the missing spouse still does not respond within 28 days, the Petitioner can file a Default, and divorce action proceeds as a default divorce.

There is no one route through a contested divorce, and such dissolutions require a lawyer. The spouse may dispute the distribution of property and debts, alimony, custody, child support and visitation, and sometimes the Petitioner does not know that the dissolution will be contested until his or her spouse files an answer disputing the allegations of the petition.

In any event, the action begins with the filing of a Petition. If the petitioner intends to make a claim on what would otherwise be his or her spouseís nonmarital property, he or she must use either the Petition for Dissolution of Marriage with Dependent or Minor Child(ren) or Petition for Dissolution of Marriage with Property but No Dependent or Minor Child(ren), depending on the situation.

Depending upon the issues in dispute, the Petitioner may have to file a Subpoena for the Production of Documents from a Nonparty (Subpoena), particularly when the Respondent refuses to file a Family Law Financial Affidavit. Before the filing of the subpoena, however, the law requires that the Petitioner give notice 10 days noticed to the spouse by filing a Notice of Production from a Nonparty. This notice may be served by mail, but the subpoena must be served by the sheriff in the county.

A contested divorce may or may not end in a divorce trial, depending upon whether or not the spouses can achieve a settlement. For this reason, the appropriate form of the Final Judgement cannot be prepared until a settlement is reached -- either by agreement of the parties or by the judgeís ruling.