Florida Residency Requirements For Divorce

Florida Residency Requirements For Divorce

The Florida residency requirements for divorce is/are that a party must prove that one of the litigants (petitioner or respondent) has resided in the State of Florida for a minimum of at least six months before filing for dissolution. Florida Statute § 61.021, “Residence requirements,” provides that: “To 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.” This residency requirement establishes jurisdiction in a Florida family law court. You may also be asked by the Court to produce an affidavit of corroborating witness.

Establishing jurisdiction in a Florida court enables the judge to preside over the parties’ dissolution of marriage case. If there is found to be no residency, the court will not have subject matter jurisdiction over the case. Foundationally, the courts have routinely upheld this requirement, “It is not enough for the parties to merely submit a petition requesting a dissolution of marriage, the party must establish the court’s jurisdiction over the parties. Wise v. Wise, 310 So.2d 431, 432 (Fla. 1st DCA 1975). An affidavit of corroborating witness is a document sworn to under oath by someone that has known the petitioner or the respondent for more than 6 months and can testify under oath that the litigant has lived in Florida for greater than six months.

Affidavit of Corroborating Witness

In a recently decided case, McNeil v. Jenkins-McNeil, the Fifth District Court of Appeals Court discussed the Florida residency requirement for divorce and implications of a party failing to meet the residency requirement. 252 So.3d 354 (Fla. 5th DCA 2018). In McNeil, the Wife filled a petition for dissolution of marriage, however, she did not allege that she was a resident of Florida. It is unclear whether she produced an affidavit of corroborating witness for the court. At trial, the Husband failed to appear, causing the trial court to grant the Wife’s divorce. The Husband appealed this decision. The Husband alleged that the Court failed to establish jurisdiction over him because the Wife failed to meet her burden of proving her or her husband’s residency in Florida. Establishing residency may sound procedural or trivial to someone that has lived in Florida for years, but it is mandatory and must be proven.

How To Prove Florida Residency Requirements For Divorce

According to Florida Statute § 61.052(2), the minimum Florida residency requirements for divorce can be corroborated by a “valid Florida driver license, a Florida voter’s registration card, a valid Florida identification card…or [by] the testimony or affidavit of a third party [affidavit of corroborating witness].” In the case above, the Wife failed to allege that she personally had fulfilled the Florida residency requirement, leading the Wife to shoulder the burden of proving, at trial, that her husband was a lawful resident of Florida for at least 6 months prior to her filing a petition for dissolution of marriage. However, “[t]he residency requirement may not be established by the uncorroborated testimony of one party.” McNeil (citing Lemon v. Lemon, 413 So.3d 623, 623-24 (Fla. 2d DCA 1975)).

The parties may not waive by admission in the “pleadings that the residency requirement has been met.” McNeil, (citing Grey v. Grey, 995 So.2d 623, 624 (Fla. 2d DCA 2008)). Additionally, “residence can never be assumed, nor can it be established by agreement.” McNeil, (citing Fazio v. Fazio, 66 So.2d 297, 299 (Fla. 1953). The Court in this case granted the Husband’s petition for reversal of the final decree of dissolution because the Petitioner failed to satisfy the statutory requirement for proving residency in the State of Florida. The Florida residency requirements for divorce cannot be waived or discounted by the court.

Affidavit of Corroborating Witness

While the right to enter into marriage is a fundamental right, as is the right to obtain a divorce in Florida, that does not excuse a court from establishing the Florida residency requirements for divorce by taking jurisdiction over a party before allowing a petition for dissolution to be granted. The courts must follow the requirements set forth under Florida Statute § 61.021, and the party filing the petition for dissolution must prove that either himself/herself or the other party has satisfied the residency requirement for divorce in Florida. The Florida residency requirement also applies in relocation with minor children cases. If you need an affidavit of corroborating witness, call the Jacobs Law Firm for help.

Jonathan Jacobs is an experienced divorce attorney in Orlando and a divorce attorney in Clermont Florida that is available to answer your questions about the Florida Residency Requirements for Divorce, and/or about divorce in Florida. We also practice in same sex divorce.

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