It is axiomatic that in order to have a divorce there must have been first a marriage. Getting married is easy. Man and a woman meet and fall in love. Man proposes to woman. Woman says “yes.” Man and woman apply for and obtain a marriage license for a nominal fee. Man and woman get married. Man and woman live happily ever after. This is the script that fairytales follow. Unfortunately, if you looking into or are wanting to get a divorce then someone rewrote your storybook ending. Few couples fully contemplate the legal consequences of getting married. It is relatively easy to get married, yet sometimes quite complicated to get divorced. A myriad of issues arise in the breaking apart of a marriage and ending the accompanying legal relationship.

Getting Divorced

Divorce only pertains to legally recognized marriages, ones performed by a notary public, minister, or other official recognized by Florida Statutes as being able to perform wedding ceremonies. Divorce does not pertain to common law marriages. In 1968, Florida abolished common law marriages. A common law marriage is whereby a man and woman hold themselves out as being married but they never “formalized” the marriage. Furthermore, Florida does not recognize gay marriages, therefore by implication Florida does not recognize gay divorces.

Florida is a no-fault divorce state. What this means is a marriage can be ended without there being fault on the part of either the husband or the wife.

Irretrievably Broken

In Florida, there are three ways to obtain a dissolution of a marriage. An annulment is a seldom sought and not easily obtained method of ending a marriage. This is a nuisanced part of family law not fully discussed here. The second method is if one spouse becomes legally incapacitated. Like annulment, there are very precise requirements that must be met. The third way and by far the most common and used method of obtaining a divorce is indicating that it is “irretrievably broken.” Almost all divorces in Florida recite these magic words, as they must, in order to obtain a divorce on these grounds. The reasons a marriage is irretrievably broken are as myriad as one can imagine.


In order to obtain a divorce in Florida, at least one spouse must have been a resident of Florida for the preceding six (6) months before filing for divorce. Again, only one (1) spouse must meet this residency requirement and it does not matter which spouse meets the residency requirement. For example, if the Husband has been a resident of Florida for the last eight (8) months and the wife has only been a resident for three (3) months, the wife can still file for divorce. To put it another way, the moving party for divorce does not have to have been a resident of Florida for the last six (6) months as long as the as non-moving spouse has been.

Types of Divorce

There are different “types of divorce” depending on what the marriage included and what is being sought to end the marriage. There are in substance really only two (2) types of divorce, contested and uncontested. Even within these two forms of divorce there are numerous ways to accomplish each depending on what issues are involved. For example, depending on whether there are minor children of the marriage or property of the marriage, one “type of divorce” may have to be used over another. Again the substance and the rules that apply are the same, it is the form and procedure that is slightly different.

Uncontested Divorce

An uncontested divorce is where the husband and wife both agree to get divorced and can agree on every issue. For example, there is no disagreement over who gets the house, the boat, the motorcycle, the kitty cat, the puppy dog, the antique table and chairs, the money in the bank account, the investments, the family heirlooms, etc. Furthermore, there is no disagreement over alimony, if any, and the amount, who the minor children will live with, how much child support will be paid and to whom, etc. As you can imagine, there are many more contested divorces than uncontested divorces because there is usually at least one issue that the husband and wife cannot agree over. Many times it will be over money, sometimes over property, a lot of the time over the minor children, and sometimes over the family pets. All it takes is a disagreement on one issue to make the divorce “contested” from a legal standpoint.

The Process to Get Divorced

Getting married was easy, pay a fee, get a marriage license, have a ceremony, pay someone to marry you, return executed marriage license to the Courthouse, consummate the marriage. Easy right? Well, getting divorce is the complete opposite. It is more costly, more time consuming, more emotionally exhausting, more work, and more miserable.

The first thing anyone should know is that to get a divorce in Florida, whether contested or uncontested, whether in Miami, Daytona Beach, or Gainesville, the filing fee set by Florida Statute is $408.00. This is the fee you have to pay to file for a divorce. There is a limited exception based on your financial circumstances to get this fee waived, but many people have the ability to pay and therefore have to pay the $408.00 filing fee.

Getting divorced also includes a mountain of paperwork that must be properly filled out and notarized. A failure to fill out paperwork properly will at the very least delay your case and at the worst could prevent you from obtaining relief you would otherwise be able to obtain or be entitled to. For example, if you do not ask for alimony in your first responsive pleading (the Petition for Divorce or Answer), then it is waived forever. It is also true that you can go to any local courthouse in Volusia County (and any other county in Florida for that matter) and for a nominal fee get a “pro se” divorce packet of paperwork. (Pro se is the legal phrase for someone representing themselves in a legal proceeding.) However, once the clerk hands over the packet of paperwork that is when the anxiety level goes through the roof. For someone not familiar with divorce law, divorce procedure, or divorce paperwork, it is a lot to take in.

Once all the proper paperwork is filled out, signed, and notarized it is then time to file it with the court along with the filing fee of $408.00. However, if the parties cannot agree on all the issues, then the divorce is considered contested and the moving spouse (also known as the Petitioner) must obtain a summons from the clerk of court and have the summons and the divorce paperwork served on the other spouse (also known as the Respondent). (A summons is a legal document indicating that a lawsuit has been filed and affirmative action must be taken to protect legal rights. Furthermore, it may also indicate to appear before the court on a particular date and time.) A summons costs $10.00, which is set by Florida Statute. Serving the divorce petition and paperwork is usually done by personal service. (Personal service is whereby a sheriff or private process server knocks on your door and hands you the paperwork and says “You have been served,” just like on TV but with a lot less enthusiasm.) The cost to use a private process server varies while the cost to use the Sheriff’s Office is $40.00, which is set by Florida Statute.

The spouse that is served the divorce petition and paperwork, known as the Respondent, has twenty (20) days to respond. The twenty days start to run on the first day after being served. The Respondent can agree to everything in the divorce petition or disagree with some it and agree to some of it, or disagree with all of it. The Respondent can also do nothing and a default will be entered. A default requires further paperwork but means more or less that the party who filed for divorce gets virtually everything he or she asked for because the Respondent is deemed to have consented to it by failing to respond to the divorce petition. Usually, the Respondent will reply by indicating they agree on some things and disagree on other things. At that point, the divorce can go many different directions. Depending on the parties, the lawyers, the issues, etc. a divorce can take from a few months to a couple of years.

There is no way to predict how a particular divorce case will proceed.

Things that can occur when the Divorce is Contested

After the Respondent responds to the divorce petition, the parties can engage in discovery. Discovery is a process whereby each party engages in fact finding. The following are different forms of discovery.

1. Request for Admissions. One party asks the other party to admit facts or the authenticity of documents.

2. Request for Production. One party asks the other party to produce specified documents.

3. Interrogatories. One party asks the other party to answer questions under oath.

4. Deposition. One party asks the other party questions, under oath, in front of a court reporter who transcribes the questions and answers verbatim. Both parties are present.

5. Deposition upon written questions. One party asks the other party questions, under oath, in front of a court reporter who transcribes the questions and answers verbatim; however, the party asking the questions is not present. The questions are all written and submitted ahead of the deposition. The court report reads the questions and transcribes the answers.

Besides engaging in discovery, the parties can agree or be ordered by the Court to attend mediation. Mediation is a voluntary process whereby the parties meet with a third party who is neutral and impartial, who is certified by the Florida Supreme Court, and is otherwise qualified in the area of family law to assist the parties in attempting to resolve some or all of their contested issues. Mediation can be through the Court or through private channels. Private mediation is expensive whereas Court sponsored mediation is offered at a reduced rate. In any event, the parties usually split the cost of mediation. An important aspect of mediation is that it is confidential. Anything said at mediation stays at mediation and cannot be introduced in later court proceedings or to the Judge.

As the case moves through the judicial system there will be at least one case management conference. A case management conference is a short meeting, fifteen (15) or less, whereby both parties meet with the Judge to discuss where the case stands. The Judge will decide any outstanding motions by either party and direct what the next step in the process will be. The Judge can set another case management conference, order mediation, give the parties more time for discovery, give the parties more time to informally work out a resolution, or set the case for trial.

Depending on what happens at the case management conference, the case proceeds onwards. Typically, after the case management conference the parties have a good idea of how the case will proceed and what outstanding issues still exist between the parties. The next major court appearance after the case management conference is trial. Not all cases make it to trial, in fact more cases get resolved prior to trial then at trial. If the parties are able to work out an agreement prior to going to trial they will draft up what is known as a Marital Settlement Agreement (MSA). A Marital Settlement Agreement is a an agreement entered into by both the husband and wife setting forth the terms and conditions of their agreement on some or all of the contested and uncontested issues in the divorce case. If there are some issues that are agreed to and some that are not agreed to, then the ones that are not agreed to will proceed onwards to trial. Trial is whereby both parties put forth evidence of their version of the facts and the Judge makes a determination. The Florida Rules of Civil Procedure, the Florida Family Rules of Procedure, and the Florida Rules of Evidence apply.