Florida Divorce: Does It Make a Difference Who Files First?

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 What Is Divorce Law?

Divorce is a legal procedure that dissolves a marriage. After a divorce is completed, each party may remarry if they choose to do so.

Divorce laws are the laws that oversee divorces. A divorce decree is a final ruling from a court that provides a judgment and order, making the cessation of the marriage official.

Every divorce decree will be different and will be based upon the individual facts and circumstances of the case. The general objective of a divorce decree is to summarize the privileges and responsibilities of each party in connection with the divorce and supply instructions regarding child custody and division of property, if applicable.

A divorce decree is significant because the divorce process will not be concluded until the decree is issued. Thus, an individual’s marriage or divorce status will not be modified or finalized until the divorce decree is ordered.

Divorce proceedings that are not yet concluded may involve many different areas of the people’s lives, including:

  • Debt;
  • Property possession;
  • Taxes;
  • Employment benefits; and
  • Other legal rights.

A divorce decree usually addresses issues such as:

A divorce decree also deals with issues related to children, if applicable, including:

  • Custody;
  • Support; and
  • Visitation; and
  • The financial obligations of each party, for example, if debts are to be paid by one or more of
  • the parties.

In addition to these legal problems, a divorce decree will generally contain essential information regarding the case, including:

  • The names of the parties;
  • The effective date of the divorce decree; and
  • The case number.

This info can be useful when an individual is attempting to locate the divorce records in the future. The local county records office generally keeps these records.

A divorce record provides evidence that the people were married and have legally and officially terminated that marriage. A divorce record may also be referred to as a marriage dissolution certificate.

It is generally a copy of the divorce decree issued during the divorce proceedings. These documents are usually filed for safekeeping with the county recorder’s office where the divorce happened.

A divorce record may be official, meaning it can be accessed from state records for a fee, or indexed, which means it is accessible through various websites or organizations. A divorce record can usually be obtained at the county court where the divorce was filed.

If the record is not available there, it may be obtained at the local recorder’s office, on a website, or with a private company.

Does It Matter Who Files First?

In Florida, as with other states, it does not usually make a significant difference who files for divorce first, becoming the “petitioner.” Some lawyers suggest that it might make a difference if a particular judge’s subtle inclinations in one Florida county over the other.

Suppose your lawyer knows that the judge in the Circuit Court of a particular county tends to grant large child support amounts, for example. In that case, this may affect the lawyer’s decision to file first, depending on whether their client is the money-earning spouse.

Of course, the spouse only has two options in the above scenario:

  • Filing for divorce in their county of residence; or
  • Waiting for their spouse to file in the other county of residence

In Florida, spouses must have lived in the county of filing for at least six months.

Can a Spouse Relocate If the Laws In a Florida County Disfavor That Spouse?

Nevertheless, where both spouses live in the same Florida county, it makes little difference who files first. It makes little substantive difference to the outcome of the case, which the judge will attempt to decide fairly (although sometimes unpredictably). Procedurally, however, it may help the filer in that they get to choose when to get the case going, which determines, in turn, ensuing deadlines.

On the other hand, differences in state law can favor or disfavor the petitioner. If laws in another state favor a petitioner, nothing is preventing a spouse from moving there to take advantage of favorable law. Nevertheless, the individual moving away must be cautious that (during the waiting requirement in the other state) their spouse does not “beat them to the punch” and file first in the state of origin.

For instance, Florida is not a “community property” state but an “equitable distribution” state, meaning that marital property is divided according to various factors, such as who bought the property. Thus, if a spouse feels that they only own 20% of the property according to these factors, they may want to move to a community property state such as California before filing for divorce to get 50% of the cut.

What Is Equitable Distribution?

When a couple considers divorce, all of their property (homes, automobiles, bank accounts, etc.) must be categorized as either separate or community property. Community property is typically anything acquired by the couple during the marriage, while separate property is acquired either before, through inheritance, or by gift.

The primary difference between community property and equitable distribution states is how the marital community property is split. Courts in equitable distribution states have the directive to make property division on divorce as fair as possible. If the circumstances warrant it, this can include one party being given a more significant portion of that community property, even an extensive share. They will take how much separate property each spouse has when deciding.

For instance, a judge might award more community property to the spouse with significantly less separate property. In community property states, separate property is not considered for this division.

How Is Property Divided in an Equitable Distribution State?

Each jurisdiction has its own list of elements that judges consider before dividing property. One of the more obvious factors is each spouse’s contributions to obtaining marital property, both monetarily and otherwise. They will consider each spouse’s financial and earning power, looking at their current assets and career prospects and options. They will also look at each person’s contributions to the other’s education, career, or earning power.

Examples include when one spouse gives up their career to take care of children or works to provide for the family while one spouse is in school. Each spouse’s age and current and future health care needs could also provoke a shift in distribution. This is because one spouse might require substantial medical treatment either now or later, needing more of the couple’s community property.

And as stated above, the judge will evaluate the couple’s accumulated separate property. This means stocks, bonds, 401Ks, retirement funds, business interests, assets, etc.

What Other Advantages Could a Spouse Have in Filing For Divorce First?

There are some advantages to filing first, which can affect the case’s outcome, but some of them are limited by state law. In many states, spouses filing for divorce first can choose between a fault or no-fault divorce. Florida, however, prohibits the use of “fault” divorces even if it would be allowed in other states.

Second, the party filing for divorce determines the timetable of the divorce proceedings, which can be necessary if one side needs time to sort out their affairs. Filing first is even more important if the spouses are in different states. For instance, if a spouse files for divorce in New Jersey while the other spouse is in Florida, New Jersey law can control the case.

Should I Contact an Attorney for My Divorce?

Divorce proceedings can be very complex. An experienced Florida divorce lawyer can help you decide whether to petition first. A family attorney can also represent you in court if a dispute arises.

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