Individual states typically follow one of two types of divorces. Fault-based divorces, based on one party’s failure to fulfill the terms of the marital contract, and no-fault divorces based on one or both party’s desire to leave the marriage.
In 1971 Florida abolished fault-based divorce in favor of a no-fault system where parties can seek a divorce without proving any reason other than not wanting to be married any more.
Grounds for Divorce in Florida
Under Florida’s no-fault divorce system, there are two grounds for divorce:
- Irretrievable breakdown of the marriage; or
- Mental incapacity of one of the parties.
Irretrievable Breakdown
An irretrievable breakdown of the marriage occurs when there is nothing that the court can do to repair the marriage. In instances where there are no minor children of the marriage involved both parties do not need to agree that the marriage is irretrievably broken.
If minor children of the marriage are involved things once again get more complicated as the court must take the best interests of the child into consideration. If the parties don’t agree the marriage is irretrievably broken, the court may order the parties to obtain marriage counseling. The court may also “continue the proceedings,” or extend the proceedings for 3 months to give the parties time to reconcile. The court may take any other action deemed in the best interest of the parties and the minor children of the marriage.
Mental Incapacity of The Parties
Divorces based on mental incapacity are more complicated because extra care is required to protect the interests of the incapacitated party. In a nutshell, for a divorce to be based on mental incapacity the incapacitated party must be adjudged legally incapacitated for at least three years. There are strict statutory requirements that describe the entire process in detail and really is the subject of another article.
The court may appoint an attorney to act as the the incapacitated party’s a guardian ad litem. The guardian ad litem’s role is to protect the interests of the incapacitated party.
Do I Need to Hire a Lawyer to Get a Divorce?
Parties are not required to hire an attorney to obtain a divorce. The State of Florida provides forms for dissolution of marriage proceedings to help guide parties through the process.
However, a divorce is still a legal proceeding. In many cases it will be the largest and most important transaction of your life. For this reason, retaining legal counsel is highly recommended. It’s important to remember that divorce is a legal process with specific rules and procedures governed by both the Florida Rules of Civil Procedure as well as the Florida Family Law Rules of Civil Procedure. Hiring an experienced family law attorney can help tremendously.
Lawyers can bring value to resolving a divorce by ensuring compliance with the basic rules, and to make sure your rights and interests are fully protected. Lawyers are detached from the dispute, and can assist their clients in separating the emotional issues from the financial and legal issues of their dispute.
People often don’t realize that they have options when filing for divorce, and a good attorney can help you weigh your options in a difficult time.
No Fault Divorces in Florida – Final Thoughts
I hope this article has helped you get up to speed on some basic considerations involved with no-fault divorces in the State of Florida.
If you have any questions at all, or need help with your divorce in Florida, please do not hesitate to get in touch with me directly via phone ((941) 882-4367) or email (dan@danpolicastrolaw.com) to set up a consultation. Please keep in mind my office is in Venice, and I mostly serve clients in Sarasota County in addition to Charlotte and Manatee Counties.
