Can I File for Divorce in Florida if My Spouse Lives Out of State?


When deciding to file for a divorce, many couples do not consider where or in which state they must file a divorce action. Some may believe that they are required to file their divorce in the same state where they obtained their marriage license. However, within the State of Florida you must only meet a few requirements in order to file for a Divorce within the state. If you are in the unique situation where you are a resident of Florida but your spouse maintains a residence out of state, contact an experienced Orlando Divorce Attorney to discuss your ability to file a divorce action in the State of Florida.

What Happens if My Spouse Lives Outside of My State?

There are two key elements to an issue involving parties involved in a divorce who reside in separate states: subject matter jurisdiction and personal jurisdiction. Subject matter jurisdiction refers to the court’s power over the issue presented, the divorce. Personal jurisdiction is the power of the court to enforce a decision against the parties, you and your spouse. The most common issue involved in a divorce between spouses of different states is the personal jurisdiction over the out of state spouse.

Subject matter jurisdiction over a divorce can be easily proven through the first requirement provided by Florida Statute in a divorce action: the residency requirement of a single spouse. This residency requirement provides, that at least one spouse of the marriage, to be a Florida resident for at least 6 months prior to filing a Dissolution of Marriage action. Therefore, under this element only one spouse may be a resident of Florida in order to proceed, so your spouse’s presence is unnecessary under this element. Fulfilling this requirement provides the court with subject matter jurisdiction over the dissolution action, as well as personal jurisdiction over you, as you petitioned the action, therefore subjecting yourself to the court’s judgment. However, if only subject matter jurisdiction is obtained in an action, the court may only dissolve the marriage, returning the parties to their single status and not address any other issues surrounding the dissolution, such as alimony or property disputes. However, if you wish to complete the entire divorce within the State of Florida you must seek out personal jurisdiction over the out of state spouse.

Florida statute provides that to obtain personal jurisdiction over an out of state party, the couple must have maintained a home in Florida as husband and wife, the out of state spouse be served with process within the State of Florida, or the out of state spouse waives the issue of jurisdiction. 48.193 Further, the court may look to the minimum contacts standards to effectuate personal jurisdiction. This standard involves the actions or contact of the out of state spouse with the forum state of Florida. For instance, if you and your spouse share children who live in Florida, or your spouse maintains contact with you in the state and visits, it is likely that the court will find significant contact with the state, subjecting them to jurisdiction.

What Happens if I Want to Move After a Divorce?

There are plenty of reasons to move, including job opportunities, being closer to family, better educational opportunities for your children, and more. However, if you share custody or are the main guardian for your children, your plans to move to a new town or state can become very complicated.

If you and your former spouse agree to the conditions of the move, the next and only step is to present a written and signed agreement to prove both party’s consent. This agreement should outline future visitation plans and transportation of the child. However, if one parents does not agree to the moving conditions presented, this process will be much more difficult to navigate.

What Happens if a Petition to Relocate Is Filed?

If the non-custodial parent objects to the move, you can file a Petition to Relocate, which means the disagreement will go to court. Once petition is filed in court, the other parent has 20 days to contest the relocation. Typically, a parent will fight a Petition to Relocate if they feel the move will prohibit them from seeing their children. In court, both parents will present their cases, including reasons why the move should or shouldn’t occur. For cases involving a distance greater than 50 miles from the current home, the court will weigh more heavily on what is in the best interest of the children.

Stopping a Custodial Parent from Relocating Children

If you are trying to prevent a former spouse from moving away with your children, it is in your best interest to demonstrate why your children should stay with you. Try to present evidence that supports the idea that your children benefit from being close to you, demonstrates your right to spend time with them, and shows the unnecessary nature of the move. You may even need to prove that the other parent is moving away just to spite you and keep you from your children.

If you are contemplating divorce and are unsure of the process, especially when involving a spouse who is out of state, contact a knowledgeable Orlando Divorce Attorney. We will be able to discuss with you the prerequisites of filing a divorce petition within the state as well as the unique circumstances of your specific case.

Speaking to an attorney at our Orlando office is free of charge, and we accept calls 24 hours a day, 7 days a week. Contact us at 407-512-0887 or complete an online contact form to get in touch with a member of our team today.

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