I am in Florida and I Want a Divorce – Where Do I File?

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At first glance the question of where to file for a divorce may not appear that complicated. However, there are times when this issue of where to file can become a hotly contested issue. It is therefore best to either agree on venue or file in the right county in the first place.

So where can you file for a divorce in Florida? Pursuant to Section 47.011 of the Florida Statutes “[a]ctions shall be brought only in the county where the defendant resides, where the cause of action accrued, or where the property in litigation is located.” Section 47.011, Florida Statutes (2016).

This venue statute has been interpreted to mean that in dissolution of marriage cases venue “lies in the county where the parties last lived with a common intent to remain married,” as that is where the cause of action is deemed to have accrued. Vinsand v. Vinsand, 40 Fla. L. Weekly D2411 (Fla. 2d DCA 2015) (internal citations omitted).

Thus, if both parties lived together in one Florida county (County A) before the marriage was undergoing irreconcilable breakdown and, when the parties decided to end the marriage, one of the parties moves to a different Florida county (County B), then in this example the proper venue (county) for filing an action for dissolution of marriage would be County A.

However, what if “County A” was a county in a state other than Florida? Where do you file then? For example, what if the parties last lived together as husband and wife, with a common intent to remain married, in a county of a state in the Pacific Northwest region of the United States? What if after the breakup each party moves to a different county in Florida and once sufficient amount of time has passed to meet the Florida’s residency requirement for obtaining a divorce, one of the parties files for a divorce in his or her Florida county of residence. Which county would then be the proper venue for the filing of a dissolution of marriage action?

Since in our second example the last place where the parties lived together as husband and wife was in a state other than Florida, absent an agreement of the parties, the proper county would then be the county “where the defendant resides”. See Section 47.011, Florida Statutes (2016). So if the Wife moves from Oregon to Orange County, Florida, and the Husband moves from Oregon to Duval County, Florida, and the Wife then proceeds to file for divorce in her new county of residence, Orange County, Florida, absent an agreement, the Husband would then have grounds to pursue a motion for transfer of venue to Duval County, Florida, as the Husband is entitled to be sued in his county of residence.

It is also important to note that the third clause of the Florida venue statute, the “property in litigation” clause, is not applicable to marriage dissolution cases. Goedmakers v. Goedmakers, 520 So. 2d 575, 579-80 (Fla. 1988). Therefore, the proper venue for a divorce action is either a county where the parties last resided as husband and wife, with a common intent to remain married, or where the defendant (respondent) resides at the time of filing.

Finally, venue is not to be confused with jurisdiction. The two must be differentiated; they are not one and the same. Pursuant to Section 61.021 of the Florida Statutes “[t]o obtain a dissolution of marriage, one of the parties to the marriage must reside 6 months in the state before the filing of the petition.Section 61.021, Florida Statutes (2016). This means that a party can only pursue a divorce action in Florida after this residency requirement is met. It is the Petitioner who has the burden of proving that this residency requirement has been satisfied. Pursuant to Section 61.052(2) of the Florida Statutes, Florida residence may be corroborated through the following methods:a valid Florida driver license, a Florida voter’s registration card, a valid Florida identification card…, or the testimony or affidavit of a third party.” Section 61.052(2), Florida Statutes (2016). The test of residency is generally the physical presence in Florida and the concurrent intent to be a permanent resident test. Coons v. Coons, 765 So. 2d 167, 171 (Fla. 1st DCA 2000) (internal citations omitted). Whether or not a complainant (a petitioner) is a Florida resident is a question of both fact and law to be settled or determined from the facts of each case. Id. (internal citations omitted).

Consequently, it is only after this residency requirement is satisfied will the issue of venue become relevant, which in and of itself is not always a “simple” matter but is something that can be aggressively litigated even before a hearing on substantive issues. Therefore, venue should not be disregarded but carefully analyzed before moving forward with a divorce action.

 

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