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FLORIDA DIVORCE LAWS & FORMS PREPARED
THINGS YOU SHOULD KNOW ABOUT
THE FLORIDA DIVORCE PROCESS
Definitions
A PRO SE is a person representing his/her own interests
without hiring a lawyer.
DISSOLUTION OF MARRIAGE is the term used by Florida's court system
for a "divorce."
The PETITIONER is the person filing a Petition for Dissolution
of Marriage and may be either the Husband
or the Wife.
The RESPONDENT is the Petitioner's spouse, the person who
is being "sued for divorce," and
may be either the Husband or the Wife.
The CLERK is the Clerk of the Circuit Court for your
County and is the official who receives all
of the paperwork to be placed in the court
file for the Judge during the dissolution
action.
A JUDICIAL ASSISTANT is the Judge's secretary.
An AFFIDAVIT is a statement of facts sworn under oath
to be true and, if untrue, could subject
the person to prosecution for criminal perjury
charges if the statements were known to be
false when made.
Paperwork
1.CONTENTS: Some information must be included
in every paper you send to the Court. All
papers filed in your case MUST have:
a. The "STYLE" of the case (for
example, "IN RE: The Marriage of JANE
DOE, PETITIONER, V. JOHN DOE, RESPONDENT"),
b. The CASE NUMBER,
c. The NAME, MAILING ADDRESS, and PHONE NUMBER
of the party filing the paper, and
d. Except for the initial Petition, a "CERTIFICATE
OF SERVICE" to show that a copy was
sent or given to the other person involved
in the case on a certain date. The Certificate
is usually in the following form: "I
HEREBY CERTIFY that a true and correct copy
of the above paper has been furnished by
____U.S. Mail/____hand delivery/____telefax/____courier
to (name of other person) at (address of
other person), this _____ day of (month),
19_____.
(signature of person submitting paper)."
2. WHO GETS WHAT AND HOW:
a. ORIGINALS: The originals of any papers
for your case should be either taken in person
or sent by U.S. Mail to the Office of the
Clerk of the Court. Submitting papers to
the Clerk is referred to as "FILING"
the papers with the Clerk. b. COPIES:
(1) THE OTHER PERSON (RESPONDENT) must receive
a copy of any paper you file with the Clerk.
How the Respondent receives that copy depends
on what the paper is. Providing a copy of
the initial Petition to the Respondent is
done by "SERVING" them with, or
giving, them the papers through delivery
by a deputy sheriff or process server or,
in some cases, by publishing a notice in
the newspaper. This will be explained in
detail below in section (B) "NOTIFYING
THE RESPONDENT".
After the initial Petition has been served
on the Respondent, copies of any other papers
filed in your case may be "served"
on the Respondent in less formal ways. At
that point, you (or anyone else) may hand
deliver the papers to the Respondent, or,
you may send the papers through the U.S.
Mail. If you use a fax machine to send the
papers to the Respondent, you must also send
the papers by one of the other ways. If the
Respondent has an attorney you would use
one of these methods to serve the papers
on the attorney instead.
(2) KEEP A COPY FOR YOUR OWN USE.
Required Statements
The Petition must outline what you, the Petitioner,
want to get from the Respondent or what you
want the Judge to do. It must always contain
the following:
a. The Respondent's full name, address, and
social security number;
b. Your full name, address, and social security
number;
c. The date and place the parties were married;
d. A statement that the parties are not now
living together as Husband and Wife;
e. A statement that the Petitioner OR the
Respondent has been a continuous resident
of Florida for at least six months before
the Petition was filed; and
f. A statement that the marriage is "irretrievably
broken".
Children
If a child was born to or adopted by the
parties during the marriage and the child
is still a minor OR if the wife is pregnant,
additional statements should be made in the
Petition. A "MINOR" child is a
child who is under the age of 18 years when
the Petition is filed. The Petition should
include the following:
a. The names, date of birth of any minor
child(ren) born to the parties during the
marriage; the name, date of birth and date
of adoption of any minor child(ren) adopted
by either or both of the parties during the
marriage. If no child has yet been born of
the marriage but the wife is pregnant, a
statement of that fact should be included.
b. A statement of which party should have
custody of the child(ren) (primary physical
residential custodian) and that the best
interests of the child(ren) will be served
by placing the child(ren) with that party.
c. A statement that the other party is entitled
to reasonable visitation rights or, if not,
what restrictions on visitation should apply
and the FACTUAL reasons why visitation should
be denied, restricted, or supervised.
d. If child custody is requested by the Petitioner,
a statement that the Petitioner needs child
support, as well as medical and dental insurance
for the child(ren), from the Respondent.
e. An affidavit listing the addresses where
each child has lived and with what persons
during the last 5 years, stating whether
each child has been involved in a request
by any other person for custody or visitation
rights, naming any other person having any
custody or visitation rights with the child(ren),
and asserting whether there is a dependency
proceeding concerning the child(ren) pending
in any court.
A form for this purpose, called a Uniform
Child Custody Jurisdiction Act Affidavit,
is available from the Clerk's Office (LAW
454).
f. A financial affidavit must be filled out
and served on or given to the Respondent
along with the Petition. A Financial Affidavit
form is available from the Clerk's Office
(LAW 458).
Spousal Support (Alimony)
If you are requesting spousal support (Alimony)
the Petition should include the following:
a. A statement that you need alimony or support
from the other party.
b. A statement that the Respondent has the
ability to pay alimony or support for you.
c. A financial affidavit must be filled out
and served on or given to the Respondent
along with the Petition.
A Financial Affidavit form is available from
the Clerk's Office (LAW 458).
Miscellaneous Matters
The Petition may also contain statements
concerning the following:
a. The change of your married name back to
a maiden or other last name, if you are a
female.
b. Property acquired by you and/or your spouse
during the marriage, whether land, houses,
buildings, etc. or personal property such
as cars, stocks, furniture, bank accounts,
pension funds, etc., which should be divided
fairly between the parties. This includes
gifts you have given to each other.
c. Any special interest you might claim to
have in any property as a result of (1) your
contribution of money from a source outside
the marriage for that property or (2) money
or services contributed by you for that property
over and above that of the other party. FACTS
must be stated to tell why you should be
given a special interest in the property.
d. Debts and liabilities incurred during
the marriage and who should pay them following
the dissolution of marriage. e. Any agreement
signed by the parties for an uncontested
divorce. If you and the Respondent have signed
an agreement, it should be attached to the
Petition as an exhibit. The agreement must
be signed by both parties.
f. Any Temporary Injunction for Protection
which is still good. The Injunction's case
number should be given in the Petition.
NOTE: At the time of filing the initial Petition,
the Clerk of the Court will charge a fee
for filing the Dissolution of Marriage action.
This filing fee must be paid or waived by
the Clerk before the Petition is filed. If
you ask for a waiver, you must file an Affidavit
of Insolvency with the Clerk. An Affidavit
of Insolvency requires you to swear under
oath that you are unable to pay the charges,
costs, or fees charged by the Clerk or Sheriff
for this action. The affidavit will require
you to specifically list your income, assets,
and financial obligations. Making false statements
under oath is a criminal act, a felony, which
could mean criminal prosecution and a jail
term if convicted.
A form called Affidavit of Insolvency is
available from the Clerk's Office (Supreme
Court Form 34).
By Sheriff or Process Server
The Clerk of the Court will issue a Summons
at the time the Petition for Dissolution
of Marriage is filed. The summons will instruct
the Respondent that within 20 days after
the Petition is given to the Respondent an
Answer or some response to the Petition must
be filed with the Clerk for the court file
and that a copy of the answer or response
must be given to you.
The Summons and Petition must be given to,
or "served" on, the Respondent
by a deputy sheriff or special process server.
The Sheriff's office or special process server
will charge you a fee for doing this. The
Clerk will tell you where the Sheriff's Office
is, and you may have that office serve the
summons and a copy of the Petition on the
Respondent. Or, you may know a person specially
appointed by law to serve summons and petitions.
In either case, you must give the summons
and a copy of the Petition (and a copy of
a financial affidavit if child support or
alimony is requested) to the Sheriff or process
server, along with the Respondent's address,
place of work, or other whereabouts. The
Sheriff or process server will attempt to
serve the papers on the Respondent and will
then file a form with the Clerk to show whether
the Respondent was served or not. If the
Respondent is not found, the process server
will have to try again. The Summons and Petition
must be left with the Respondent or a member
of the Respondent's household over the age
of 15 years for there to be proper service.
For the Judge to get personal jurisdiction
over the Respondent, the Respondent must
be found.
NOTE: The Judge must have personal jurisdiction
over the Respondent by personal service to
be able to order child support, alimony,
and in most cases, divide property and debts.
By Publication
If you do not know where the Respondent lives
or works, you can still give notice of your
Petition to the Respondent through what is
called "constructive service of process".
To do this you must file an Affidavit of
Diligent Search and Inquiry for Service by
Publication stating that you have tried to
find out where the Respondent lives. In the
affidavit, you must list all the things you
did to find the Respondent such as asking
friends and relatives; checking telephone
directory information; checking with the
office of voter's registration or the tax
assessor; or any other source of information
to locate Respondent's residence. This affidavit
must be signed by you under oath and you
must swear to the truth of the facts stated
in it before a notary public or Court Clerk.
The Judge will ask you questions about your
affidavit and search, and if the Judge decides
you did not try hard enough to locate the
Respondent, the Judge will not give you the
divorce. A form called an Affidavit for Service
by Publication is available from the Clerk's
Office (Supreme Court Form 26).
Once the Affidavit is filed, a Notice of
Action must then be sent to a newspaper to
be published once a week for four consecutive
weeks. It must be a newspaper published in
Brevard County. You may either give the Notice,
along with a stamped envelope addressed to
the newspaper of your choice, to the Clerk
of the Court to be delivered to the newspaper
or you may deliver the Notice of Action to
the newspaper yourself. You MUST pay for
the publication at the time you ask it to
be published if required to do so by the
newspaper. After publication of the Notice
for four weeks, the newspaper will give you
an Affidavit of Publication which MUST be
filed with the Clerk of the Court.
A form called Notice of Action is available
from the Clerk's Office (Supreme Court Form
24).
NOTE: If you serve the Respondent only by
publication, the Judge does not get personal
jurisdiction of the Respondent, which means
that the Respondent cannot be ordered to
pay alimony or child support or divide property
and debts. The Judge can normally only give
the divorce and determine custody of the
child(ren) living with the Petitioner in
cases where the Respondent was not personally
served.
By Agreement
If there is a signed agreement between the
parties to settle the case, the Respondent
may voluntarily accept the Petition from
you. In a case with an agreement, an Answer
and Waiver to the Petition may be filed by
the Respondent. With an Answer and Waiver,
you can set a final hearing on your Dissolution
of Marriage without having the Respondent
appear at the hearing. You must file the
Answer and Waiver with the Clerk before you
call the Judicial Assistant of the assigned
Judge to schedule your case for a final hearing.
A form called an Answer and Waiver is available
from the Clerk's Office (LAW 453).
Answers
This is the written statement made and filed
by the Respondent in answer to your Petition.
The Answer may admit some of your statements
and deny others, or it may admit or deny
all of your statements. The Respondent should
file the Answer with the Clerk and send a
copy of it to you.
Defaults
If an Answer, Motion, or some other response
is not filed by the Respondent within 20
days after the Respondent is served with
the Summons and Petition by the Sheriff or
process server, or by the date listed in
the Notice of Action, you may file a Request
to Enter Default asking the Clerk of the
Court to enter a Default against the Respondent
in your case. A Default, if given, means
that the basic statements in the Petition
are deemed admitted by the Respondent and
no defenses are made, except that the Judge
will decide what is in the best interest
of the child(ren) on the issues of child
custody, visitation, and support regardless
of what the Petition states. Even after a
Default is entered, the Respondent must still
be given notice of any hearings and the final
hearing concerning those issues and may appear
and present evidence or testimony on those
issues.
A form called Request to Enter Default is
available from the Clerk's Office (LAW 455).
To have the Default entered, you MUST file
a notarized Non-Military Affidavit. The Non-Military
Affidavit states that the Respondent is not
an active member of the Armed Forces of the
United States. Unless you file the Affidavit
of Non-Military service, the Clerk will not
enter a Default.
A form called a Non-Military Affidavit is
available from the Clerk's office (LAW 456).
If the Respondent is in the Armed Forces,
a Default cannot be entered by the Clerk.
In that case you would then file a Motion
for Entry of Default by the Judge, get a
hearing from the assigned Judge's Judicial
Assistant, and send a Notice of Hearing to
the Respondent. At the hearing, the Judge
may enter the Default.
Forms called Motion for Entry of Default
by Judge and Notice of Hearing are available
from the Clerk's Office (LAW 452).
Counterpetitions
The Respondent may file with the Clerk and
serve on you through the mail a Counterpetition
for Dissolution of Marriage asking for a
divorce, custody of the child(ren), or other
things. You will then have to file and serve
an Answer to the Counterpetition with the
Clerk within 20 days of getting it and send
a copy to the Respondent. If you fail to
do this the Respondent may ask for a default
against you.
Discovery
In a contested dissolution of marriage case,
the Florida Rules of Civil procedure give
you certain rights to get information from
the other party, for example, by taking testimony
from the person under oath before a Court
Reporter or by sending the person written
questions, called interrogatories, which
must be answered under oath. You should consult
an attorney in a contested case to assist
you in asking for discovery from the other
party, witnesses, employers, etc., concerning
the issues of the case. The Judge or the
Clerk's Office cannot help you prepare your
contested case.
Uncontested Final Hearing
WARNING: If there is a minor child of the marriage,
you will not be given a hearing date until
both you and the Respondent attend a 3 1/2
hour seminar on "Helping Children Cope
With Divorce". The Clerk will provide
you with a list of organizations offering
the seminars to call and schedule your attendance.
If it has been twenty days since you served
the Respondent with the Petition for Dissolution
of Marriage, both parties have attended the
"Helping Children Cope with Divorce
Seminar" (if there are minor children
of the marriage), and you have an Answer
and Waiver from the Respondent, you may set
a final hearing by calling the assigned Judge's
Judicial Assistant.
If a Default has been entered against the
Respondent and there are children involved
OR a Marital Settlement Agreement and an
Answer and Waiver have been filed, you may
set a final hearing but you MUST still send
the Respondent a Notice of Uncontested Final
Hearing. The Judge WILL NOT be able to hear
the case until after the Respondent is given
notice of when and where it will be held
and given the right to appear and be heard
on issues of child custody, visitation, or
support. Please note that this hearing may
be set before the General Master or a Judge.
A form called a Notice of Uncontested Final
Hearing is available from the Clerk's Office
(LAW 451).
You must bring ONE of the following to the
final hearing to prove that you are a resident
of Florida:
a. A witness, 18 years of age or older, who
can testify that the witness, by his/her
own personal knowledge, knows that either
you OR the Respondent are presently a resident
of the State of Florida and that you have
been a resident of Florida for at least 6
months continuously before the Petition was
filed.
b. An Affidavit of Residency, properly filled
out by someone 18 years of age or older and
notarized. The person signing it must have
personal knowledge that you or the Respondent
have lived in Florida at least six months
before you filed your Petition for Dissolution
of Marriage.
A form called Affidavit of Residency is available
from the Clerk's Office (LAW 457).
c. A valid Florida Driver's License or Florida
Voter's Registration card.
If you cannot prove that you or the other
party is a resident of Florida and have been
a resident for at least 6 months before the
Petition was filed, the Judge cannot give
you a divorce.
When you come for the final hearing you will
also need to bring with you (1) a Final Disposition
Form; (2) a Final Judgment for the Judge
to sign; (3) the fee for the Court Reporter
because a Court Reporter is required in an
uncontested dissolution hearing; and (4)
$7.00 for the Clerk's Office to record your
Final Judgment. (This charge subject to change.)
A form called a Final Disposition Form is
available from the Clerk's Office (LAW 122).
You and your witnesses should be dressed
properly at the time of your appearance.
Shorts, cut off jeans, halter tops, no shoes,
etc., show disrespect for the Judge. Unless
you are properly dressed, you may not be
allowed to have your hearing at that time.
Contested Final Hearing
WARNING: If there is a minor child of the marriage,
you will not be given a trial date until
both you and the Respondent attend a 3 1/2
hour seminar on "Helping Children Cope
With Divorce". The Clerk will provide
you with a list of organizations offering
the seminars to call and schedule your attendance.
If the Respondent cannot be found to get
personal service, the Judge may not require
the seminar for the Respondent if you ask
the Judge not to require it.
Setting the Date
When the Respondent files an Answer to the
Petition stating that he/she does not agree
with what you have asked for in the Petition,
and you have filed an Answer to any Counterpetition
filed against you, the case is "at issue"
and can be set for trial. Either an Answer
or a Default MUST be in the court file for
the Petition, and for the Counterpetition
if one has been filed, before a trial date
may be set. The procedure for requesting
a Default is discussed in detail above in
subsection (C)(2) "DEFAULTS".
Setting a trial date is done by filing a
notice stating that the case is ready for
trial, that it is an original non-jury action,
and giving your estimate on how much time
you think will be needed for the parties
and any witnesses to testify and present
evidence. (Any action filed with the Clerk
that does not attempt to modify the result
of an earlier judgment in the case is an
original action, and dissolution cases are
all tried without juries.) The original Notice
of Non-Jury Trial must be filed with the
Clerk of the Court, and copies of it must
be sent to the other party and to the Judge
assigned to the case.
A form called a Notice of Non-Jury Trial
is available from the Clerk's Office (LAW
450).
After the Notice of Non-Jury Trial is filed
and both parties have attended the "Helping
Children Cope With Divorce" seminar
(if there are minor children of the marriage
or if a Judge does not require both parties
to attend), the Family Court Coordinator
will then set your case on a trial docket
with the Judge's other cases and you will
get a notice in the mail of the trial period
during which your case will be heard by the
Judge. Unless you are the first case on the
list, you must check with the assigned Judge's
Judicial Assistant every day after the trial
period starts to find out when you need to
come to court.
You must bring any witnesses you need with
you to the trial. It is best to have necessary
witnesses subpoenaed to make sure they will
come to the trial. The Clerk's Office will
issue you a subpoena for your witnesses,
but you will need to arrange for service
of the subpoena by the Sheriff, a process
server, or any other person who is not a
party but is 18 years of age or older. A
written statement or "proof of service"
that one of the above people has actually
served the subpoena on the witness must then
be filed in the court file.
A subpoenaed witness is entitled to witness
fees and mileage. You must provide the person
serving the subpoena on the witness with
a check or money order to pay the fees and
mileage at the time the subpoena is served.
You must also pay the person serving the
subpoena. The witness fee is $5.00 plus 6
cents per mile for the actual distance of
the witness' house to the courthouse and
back home. (These charges subject to change.)
If you do not give the witness these amounts,
the witness may not come to the trial and,
if not, will not be punished by the Judge.
At the Trial
At the trial you, the Respondent, and all
of the witnesses will be sworn to tell the
truth. If any party or witness tells a lie
during the trial or any other court proceeding,
they could either be held in contempt by
the Judge and punished or be prosecuted by
the State Attorney's office for a felony
called perjury.
You must bring all papers, cancelled checks,
and other evidence you want the Judge to
see with you to the trial. The Judge will
make rulings on all of the issues and direct
that a Final Judgment be prepared on the
rulings. The marriage is NOT dissolved (you
are not divorced) until the Final Judgment
is SIGNED by the Judge and RECEIVED by the
Clerk of the Court. You must bring a Final
Judgment form with you or prepare one after
the trial. You may need help in preparing
the Final Judgment form. The Judge does not
prepare it for you. You should see an attorney
to help you prepare it so your divorce can
be finalized quickly.
You must bring with you to trial ONE of the
following to prove that you are a resident
of Florida:
a. A witness, 18 years of age or older, who
can testify that the witness, by his/her
own personal knowledge, knows that either
you OR the Respondent are presently a resident
of the State of Florida and that you have
been a resident of Florida for at least 6
months continuously before the Petition was
filed.
b. An Affidavit of Residency, properly filled
out by someone 18 years of age or older and
notarized. The person signing must have personal
knowledge that you or the Respondent have
lived in Florida at least six months before
you filed your Petition for Dissolution of
Marriage.
A form called Affidavit of Residency is available
from the Clerk's Office (LAW 457).
c. A valid Florida Driver's License, or Florida
Voter's Registration card.
If you cannot prove that you or the other
party is a resident of Florida and have been
a resident for at least 6 months before the
Petition was filed, the Judge cannot give
you a divorce.
A Court Reporter is not required for a contested
dissolution of marriage case, but you may
still request one if you wish a record of
the testimony at the trial. If you think
you may wish to appeal the Final Judgment
ordered by the Judge, you MUST have a transcript
of the trial testimony and proceedings to
give to the appeals court. A transcript of
the trial is the only opportunity for the
appellate court to "hear" the parties'
and witness' testimony.
You and your witnesses should be dressed
properly at the time of your appearance.
Shorts, cut off jeans, halter tops, no shoes,
etc., show disrespect for the Judge. Unless
you are properly dressed, you may not be
allowed to have your hearing at that time.
Emergency Hearings
If any kind of Court ruling is needed before
the Respondent answers your Petition, such
as temporary child support or alimony, temporary
custody to protect the child(ren), or a restraining
order, a Motion for Temporary Relief asking
for that relief can be filed with the Clerk
of the Court. In the motion you must state
the exact action you want the Judge to take
and the FACTS which you believe will prove
why your motion should be granted. A copy
of the motion must be served on the Respondent
by either the Sheriff or any other process
server or, if the Respondent has already
been served with the Petition, by U.S. Mail.
To have the Judge hear your motion, you must
call the office of the Judge assigned to
the case and ask the Judicial Assistant for
a date and time to have the hearing. After
getting a date and time for a hearing, you
must then write out a Notice of Hearing stating
the Judge's name and the date, time, and
place of the hearing. You must file the original
Notice of Hearing with the Clerk and send
a copy of it to the Respondent.
A Notice of Hearing form is available from
the Clerk's Office (LAW 329).
You MUST bring your witnesses to the hearing.
If you think the witnesses will not come
voluntarily, you can ask the Clerk of the
Court to issue a subpoena. The subpoena must
be served on the witness to make the witness
appear and testify. You will need to arrange
for service of the subpoena by the Sheriff,
a process server, or any other person who
is not a party but is 18 years of age or
older. A written statement of "proof
of service" that one of the above people
has actually served the subpoena on the witness
must then be filed in the court file.
A subpoenaed witness is entitled to witness
fees and mileage. You must provide the person
serving the subpoena on the witness with
a check or money order to pay the fees and
mileage at the time the subpoena is served.
You must also pay the person serving the
subpoena. The witness fee is $5.00 plus 6
cents per mile for the actual distance of
the witness' house to the courthouse and
back home. (These charges subject to change.)
If you do not give the witness these amounts,
the witness may not come to the trial and,
if not, will not be punished by the Judge.
Conclusion
If you have any other questions, seek the
advice of an attorney. You may get advice
on certain things without the attorney appearing
for you in court. By getting an attorney's
advice you will protect yourself more effectively
than if you fail to talk with an attorney.
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