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Out of state divorce – the options

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Florida has no legal separation requirement and is fairly predictable for divorce outcomes. This makes it an attractive option for persons seeking a divorce from out of state. There are, however, limitations to the jurisdiction of Florida to enter all or part of a dissolution for a marriage that occurred outside of its borders. Some of those issues are as follows:

Minimum residency requirement:

By law, at least one of the parties to the marriage must have resided at least 6 consecutive months in the state of Florida prior to filing the petition. Proof of residency, either by showing a driver’s license at the final hearing or through testimony of a witness, will be required by the Court. If you are an out of state Petitioner and your spouse lives in Florida, then you may petition here. However, residency merely gives the Court authority to enter the divorce, itself. Depending on the circumstances, the Court may or may not have jurisdiction to perform other functions (see below).

Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA):

Every state in the U.S. requires compliance with the UCCJEA, which is the jurisdiction by which a Court has authority to establish a parenting plan (i.e. parental time-sharing and residence of the minor children, a/k/a custody). A child must be a resident of a state for 6 consecutive months in order for that state to have “home-state” authority under the UCCJEA. There are, of course, emergency exceptions. A Petitioner who seeks a Florida divorce might have the ability to get that dissolution, but if the children do not also live in Florida then the Court might not have jurisdictional authority over them. Since bifurcated proceedings are best avoided, if you have children out of Florida then it is best to file for dissolution in their “home state” of residence.

Child Support and Alimony:

Typically, the authority to enter child support will follow along with the authority to establish a parenting plan (see UCCJEA, above). These two issues are symbiotic because the child support guidelines depend, in part, upon the time-sharing plan. Alimony in Florida depends on the length of marriage and a variety of other financial factors, so in theory the obligation can be imposed upon (or entitled by) a non-resident. Enforcement of either form of support, however, depends upon residency, since the jurisdiction of Florida to impose enforcement stops at its borders. Bear in mind, orders entered in Florida are entitled to full faith and credit in other states.

Equitable Distribution:

A Court in Florida can force the sale of real property (partition) if the property is located in Florida. If the property is out of state, then it must be conveyed, in whole, to either party.

It is important to remember that a divorce is premised upon the totality of all issues – an acronym often used by the courts is PEACE. You have to do Parenting issues before you determine Equitable distribution, which in turn has an effect on Alimony, and that, in turn, effects, Child support. Then comes Everything else (i.e. attorney fees, etc.). Because of that relationship, it is best to choose the state that will be the most appropriate forum for all aspects of your divorce, and not just pieces of it. Otherwise you will end up with multiple proceedings, multiple lawyers, and more time

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