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Jurisdiction for Divorce

My husband and I were married in Georgia and moved to Florida about a year ago to get a fresh start in our marriage. Unfortunately, things have not improved, and I want to get a divorce. My husband left our home in Florida and is now staying with his brother while he looks for a job. Do I need to file for divorce in Georgia now that my husband has gone back there, or am I able to file for divorce here in Florida where I plan to stay?

To file for a divorce in Florida, at least one of the spouses must be residing in Florida for at least six months. This means that if you are in Florida, and have lived here for the past six months, you can file for divorce in Florida. This is true even if your spouse lives outside of Florida, you were married outside of Florida, or you and your spouse have never lived in Florida together. You may also file for divorce in Florida if your spouse has lived in Florida for at least the past six months, even if you have never been to Florida yourself. Most states have similar laws, and generally parties can file for divorce anywhere once they have lived in that state long enough to satisfy that state’s residency requirement.

To obtain a divorce in Florida, not only does at least one spouse need to meet the residency requirement, but the court will also need to have personal jurisdiction over both spouses. In plain language, this essentially means the court has the authority to issue court orders and require that person to comply. In a divorce, the party who initially files the documents to open the case will be considered to have consented to the court having personal jurisdiction over them, even if they reside outside of Florida. If the other spouse who does not file the initial paperwork is residing outside of Florida, then personal jurisdiction over the out-of-state spouse would need to be established to proceed. It is possible for a respondent spouse, or the spouse who does not initiate the case, to also consent to the Florida court having jurisdiction over them. This is accomplished simply by the respondent spouse accepting service of process and not challenging jurisdiction.

All states have what is referred to as a long arm jurisdiction statute to determine whether the courts of that state will have jurisdiction over a person outside of its borders. The term “long arm statute” is used because essentially the state is trying to reach outside of its own borders to force someone to court, and certain requirements need to be met for the state to be able to do that. For divorce cases in Florida, there is personal jurisdiction over the spouse residing outside of Florida if Florida was the last place the marriage was intact or if the nonresident spouse lived in Florida prior to the divorce case being filed.

If there are minor children involved in the divorce, jurisdiction over the minor children is based on a document referred to as the “UCCJEA,” short for the Uniform Child Custody Jurisdiction and Enforcement Act affidavit. The UCCJEA requires information regarding the full name, date of birth, and place of birth for all minor children, as well as all addresses where the children resided for the past five years. One of the purposes of the UCCJEA is determine if a Florida court has jurisdiction to make an initial child custody decision. A Florida court can only make an initial child custody determination if:

  • Florida was the home state of the child on the date that the case was opened, or
  • Florida was the home state of the children within six months of the case being opened and, while the child is no longer in Florida, a parent continues to reside in Florida,
  • no other state qualifies as the home state,
  • or another state qualifies as the home state but has declined to exercise jurisdiction.

The home state of a child is where the child has lived for at least six consecutive months with a parent. Temporary absences from a state will still count towards those six months. For example, if the mother and children are residing in Florida but they go to stay with the mother’s parents in Texas for one month with the intentions of returning to Florida, that month will still count towards the time requirement for Florida to be the children’s home state.

There are many other legal factors when determining which court will handle a divorce. If the court where the case is opened has jurisdiction, but a court in another state could also have jurisdiction, it is possible to have the case dismissed in Florida and re-filed in the other state under the doctrine of forum non conveniens. Under Florida case law, the court is required to determine whether there is an adequate alternative forum available to hear the case, all private interests involved in the case, any public interest factors in favor of the case being heard in the alternative forum, and whether the person opening the case would be able to file their case in the alternative forum without undue inconvenience or prejudice before deciding to dismiss a case on grounds of forum non conveniens. The court should give a strong presumption in favor of allowing the case to proceed where originally filed.

This is just a very brief and general overview of how jurisdiction works. Jurisdiction is a complex and technical legal concept that may or may not present any issues in your case. If both parties lived in one county in one state during the marriage and continue to reside in the same county after separation, most likely the circuit county in that county will be the most convenient and appropriate court to hear the dissolution. In fact, in that circumstance, it would be the only choice. If the parties live in different counties, or different states, then a choice of courts may come into play. Different states have different laws regarding the distribution of property, alimony, and calculating child support. If you can fulfill the jurisdictional requirements in multiple states or counties, it can be advantageous to consider which jurisdiction may be better for you. Here at My Florida Family Law Firm, we understand the complexities of jurisdiction and can help you make the best decision for you and your family. When you contact us, we will take the time to review the facts relevant to determining what courts may have jurisdiction over your case and help you weigh the benefits and disadvantages for each court. Our Orlando divorce attorneys practice throughout Central Florida and are familiar with the judges and other attorneys practicing family law in those areas. Knowing what types of arguments, a judge responds more favorably to and what a judge likes to see in their courtroom can be advantageous to your case. Call us today for a free consultation 24/7 at 407-872-0303 or 352-357-4084.

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