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.
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.
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.
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