Florida No-Fault Divorce Explained

This article comprehensively covers Florida’s No-Fault Divorce System by explaining every nuance of “irretrievably Broken,” the historical context of Florida’s No-Fault Divorce System and practical implications.

Core Terms

To understand Florida’s No-Fault Divorce System, there must be a general understanding of the core legal terms. Here is a list of all important legal terms needed to fully understand Florida’s No-Fault Divorce System.

1. No-Fault Divorce

A no-fault divorce is a traditional divorce where neither spouse needs to prove any wrongdoing or fault to obtain the divorce. State’s that do not adhere to a No-Fault Divorce System Florida require a showing of wrongdoing or fault such as adultery or cruelty to obtain the divorce.

2. Irretrievably Broken

Under Florida Law, when parties seek a divorce, the parties are required to show that their marriage is “irretrievably broken” which means that the marriage cannot be saved through marriage counseling or other avenues of reconciliation.

3. Petitioner / Respondent

The Petitioner is the spouse that files for the divorce. The Respondent is the other spouse who may contest or agree.

4. Contested Divorce

A type of divorce where the parties to the divorce disagree on provisions of the separation. It should be noted that Florida Law allows a court to grant a divorce even when one of the parties does not agree.

5. Cooling-Off Period

The court is allowed to delay or postpone court proceedings when there are minor children involved or it is. Contested divorce. Generally, the court may require the parties attend counseling or mediation.

6. Burden of Proof

In Florida, the petitioner does not have to prove that there was wrongdoing or fault. But, the petitioner must testify that the marriage is irretrievably broken.

7. Equitable distribution

Florida courts use equitable distribution as a method of dividing up marital property and debts when a divorce takes place. There is a presumption that these assets and liabilities should be split evenly between the parties but, Florida courts try to determine the fairest outcome even if that means the split is not 50/50.

8. Simplified dissolution of marriage

Florida provides a process by which a divorce can be obtained by a non-traditional and simplified process. Spouses can only qualify for simplified dissolution of marriage when they have no minor children and agree on all major points such as alimony, that the marriage is “irretrievably broken,” and how to divide marital property and debts. Simplified dissolution of marriage is generally faster and cheaper than a traditional divorce.

9. Temporary orders

Temporary orders are orders from a judge that are effective prior to the finalization of a divorce.

10. Final judgements

A final judgement is the order from the court that finalizes the divorce process. General, this will include the binding decision on how marital property and debts will be divided, child custody, and other major issues. Once this final judgement is entered, the parties are officially divorced.

11. Mandatory disclosure

Mandatory disclosure is the period of a divorce action where both parties are required to exchange financial documents within 45 days of the petition. The purpose of mandatory disclosure is to ensure transparency and fairness while promoting settlement.

What does “irretrievably broken” mean?

Under Florida Statute § 61.052, there are only two separate ways to get a judgement on a dissolution of marriage (divorce). The first way is to show the marriage is irretrievably broken. The second way is to show mental incapacity of one of the parties. This Article will focus on the first and most common way to get a judgement on a dissolution of marriage: showing that the marriage is irretrievably broken. The parties are required to show that their marriage is “irretrievably broken” which means that the marriage cannot be saved through marriage counseling or other avenues of reconciliation.

What “irretrievably broken” does NOT mean

When discussing what is required to obtain a divorce in Florida, it is easier to understand what is not required. Below is a general list of things that Florida does not require to obtain a divorce.

1. Florida does not require an agreement between spouses to obtain a divorce. One spouse is permitted to obtain a divorce even when the other spouse does not want a divorce.
2. Florida does not require a showing of fault. Spouses are not required to show that certain bad acts have taken place and led to the downfall of the marriage. Some of the traditional ways of being “at fault” are a showing of infidelity, abuse, and abandonment.
3. Florida does not require a complete lack of communication. Spouses are permitted to contact each other or even cohabitate while still obtaining a divorce. The marriage can still be “irretrievably broken” even though spouses may still be in contact or cohabitating.
4. Florida does not require all marital issues be settled before labelled “irretrievably broken.” A marriage can still be found to be “irretrievably broken” before property, support, or property matters are resolved.
5. Florida does not require marriage counseling prior to obtaining a divorce. Note that the court may order marriage counseling during divorce proceedings in rare situations.
6. Florida does not require a waiting period once it is shown that a marriage is “irretrievably broken.”

What are some signs that my marriage is irretrievably broken?

While there isn’t a concrete list of signs that a marriage is irretrievably broken, there are some standard marital issues that frequently occur in many divorce cases:

1. Breakdown of emotional connection: Feeling distant from your partner and not sharing personal thoughts or feelings. Lacking interest and empathy in your partner while feeling lonely when you’re together.
2. Constant arguing: When conflict occurs frequently about issues that are small. Repeating conflicts without getting to a proper resolution.
3. Lack of communication: Feeling like you can’t talk to your partner about anything or ignoring your partner to avoid an argument. Withholding information and making decisions alone. Speaking about only essentials that are related to kids or bills.
4. Infidelity: When one or both partners have engages in affairs and the loss of trust cannot be regained. Lack of conversation about prior infidelity.
5. Domestic abuse: Physical violence or emotional abuse, control, or manipulation. Abusing control of finances by restricting access to money.
6. Fundamental lifestyle differences: Present and future goals have strayed away from each other and no longer align. Parties have different ideas of how to raise their kids, where to live, or what career path will be taken.

Historical context of the Florida No-Fault System

Before 1971, Florida requires one of the spouses in a marriage to prove that the other spouse was at fault for the downfall of the marriage to obtain a divorce. Again, some of the traditional ways of being “at fault” are a showing of infidelity, abuse, and abandonment When Florida required a showing of fault, many problems arose within and surrounding divorce proceeding. For example, spouses were more inclined to falsely accuse their partner of immoral acts to get out of their existing marriage. In addition to false accusations, spouses were forced to participate in unnecessary conflict to get a divorce. From the 1960-1970s, there was a nationwide awakening to the idea of a no-fault divorce system. Academics claim that this change was sparked by the increase of woman’s rights and rethinking of traditional family roles. Woman’s movements pressured legislatures around the country to conform their family law systems with the values of the modern country. In 1971, Florida Law changed and adopted the current no-fault system. A no-fault divorce is a traditional divorce where neither spouse needs to prove any wrongdoing or fault to obtain the divorce. California was the first state to adopt the no-fault divorce system and Florida was one of the first states follow California’s lead. By adopting the no-fault system, Florida became a leader in the Southeast and set precedent for surrounding states to adopt similar systems. The goals of Florida’s adoption of the no-fault system were simple and related to limiting the unwanted outcomes with the fault system. Basically, Florida wanted a less contentious and simpler process for divorce. Judges are generally in favor of the no-fault system because it reduces the burden on family court dockets around the state. The no-fault system eliminates the need to argue over fault in a court setting which allows judges to focus on other aspects of the divorce. Some critics have claimed that no-fault marriages make it too easy to get a divorce. Florida counteracts this criticism by retaining discretion over equitable distribution, allowing a fair resolution regardless of which party filed for divorce.

The two paths of proving “irretrievably broken.”

Florida provides two separate paths for proving or showing that a marriage is irretrievably broken. The first path is via an affidavit of petitioner and the second path is via judicial finding. The first path for proving that a marriage is “irretrievably broken” is by Affidavit of Petitioner. Affidavit of Petitioner is only available when both parties agree that the marriage is “irretrievably broken.” To start, the Petitioner files a Petition for Dissolution of Marriage under Florida Statute § 61.052(1)(a). Along with this Petition for Dissolution of Marriage, the Petitioner can file an affidavit that swears that the marriage is “irretrievably broken.” One common misconception is that both parties are required to file something showing that the marriage is “irretrievably broken.” This is not true because one party’s affidavit is enough for Florida courts. This first path results in a simplified process that can result in a much faster judgment. The Second path for proving that a marriage is “irretrievably broken” is by Judicial Finding. Generally, Judicial Finding is available in three different cases:

• When one party (the Respondent) denies that the marriage is “irretrievably broken.”
• When there is a minor child involved.
• When the marriage is a covenant marriage. Note that Florida only recognizes covenant marriage from other states.

Florida courts usually conduct hearings or a trial when determining whether the marriage is “irretrievably broken.” In some rare situations, the court may order counseling or mediation to try to work through some of the issues in the case. Florida courts usually only order this when there are minor children involved. Additionally, the court might choose to continue the divorce proceedings for up to 3 months. This procedure allows time for the parties to the divorce to reconcile their differences. One common misconception with the judicial finding path is that a party can block the divorce by refusing to agree to the divorce. This is incorrect because even if one spouse does not agree, the court will still find that the marriage is irretrievably broken and find that the marriage is “irretrievably broken” based on one party’s testimony. Another misconception is that the court will always order counseling. This is incorrect because it is rare that a court will order mandatory counseling.

Guardian ad Litem (GAL)

1. What is a Guardian ad Litem?

A Guardian ad Litem is a third party that is appointed by the court to represent the interest of minor children while a family law case is taking place.

2. Why is a Guardian ad Litem important?

They ensure that someone is looking out for the best interests of the child. This can become essential in cases where the spouses are in constant conflict about marital issues. Guardian ad Litem help inform the court and make decisions for the benefit of the children.

3. When is a Guardian ad Litem appointed?

• When there are significant disputes over time sharing or parent rights.
• When there are allegations of abuse or neglect.
• When the court requests an independent investigation into what is best for the children.

4. Who is a Guardian ad Litem?

Guardian ad Litem are generally attorney’s or high-level mental health professionals. There is specific training and qualifications that must be met to become a Guardian ad Litem in Florida. This training includes requirements such as a 30 hour state-approved training course, Level 2 background check, and reoccurring education requirements.

5. What does a Guardian ad Litem do?

• Speak with the child, parent, teachers, and caregivers about
• Review the child’s records related to school, medical, and legal.
• Generally observe the relationship between the child and parents.
• Submits a written report to the judge about their findings and provides recommendations to the court based on those findings.

6. Does the Guardian ad Litem take the place of the judge?

No, Guardian ad Litem do not take the place of the judge but, judges do rely heavily on the Guardian ad Litem report. Parents can object to a Guardian ad Litem or show that they are bias based on evidence.

Florida may have a No-Fault Divorce System, but improper conduct is still relevant

While Florida may be state that has a no-fault divorce system, improper conduct or behavior is still relevant to certain aspects of the divorce. Improper conduct may affect how Florida courts rule on issues such as child custody, alimony payments, and division of property. So, let’s walk through how conduct or behavior impact each of these areas.

1. What is the impact of improper conduct or behavior on child custody?

The key concept in child custody proceeding is to determine what is the best interest of the child. While domestic abuse, substance abuse, and neglect do not apply to determine “fault” to obtain a divorce, these factors do apply to determine child custody. Real life scenario: A mom has two children and is seeking an order that grants her majority timesharing. It is discovered that the dad has a severe drinking problem and was arrested for driving under the influence while the two children were in the car. The court may find that the dad’s substance abuse issues and prior acts of endangering the children pose a significant risk to the children going forward. The mom may be awarded primary custody of the children while the dad may receive supervised visitation.

2. What is the impact of improper conduct or behavior on alimony?

Generally, Florida courts will look at the need and ability of the parties when determining alimony payments. But, under Florida statute § 61.08, courts will also look at improper conduct in some cases. Improper financial conduct such as hiding income or deliberate unemployment can influence the amount or duration of alimony. It is also worth noting that adultery may be considered with respect to alimony payments only when it results in financial harm. One example of this could be when a spouse takes their affair partner on an expensive vacation. Real life scenario: A husband discovers that his wife is privately moving money earned from her job as bank teller into a secret bank account. The wife also quits her high paying bank teller job shortly before filing for divorce. The court may find that the wife was intentionally attempting to avoid paying alimony to the husband. The court might act by imputing income on the wife based on her prior earnings as a bank teller and force her to pay a larger alimony obligation.

What is the impact of improper conduct or behavior on distribution of property?

Generally, there is a presumption of equal division of property in Florda. But, improper conduct such as intentional destruction of property or concealment of marital assets may lead to an unequal distribution of property in favor of the innocent party. Real life scenario: A husband sells the family boat to a friend for a fraction of the market value and gives the proceeds to his brother to hide the funds from his wife. The court may determine that this constituted intentional dissipation of marital assets. The court may award the wife a larger share of the marital property that is to be split among the couple.

Covenant Marriage distinction

Covenant marriage is a special form of marriage that comes with strict rules for obtaining a divorce. Covenant marriage is only available in a limited number of states such as Arizona and Louisiana. Florida does not offer or require covenant marriage but, Florida does recognize covenant marriages from other states. Under Florida law, a covenant marriage is recognized as a valid marriage. Although Florida courts will not recognize or allow the covenant restrictions. Florida applies the standard no-fault divorce system and not the strict covenant restrictions under other states laws. The following is an example of how a Louisiana covenant marriage would be handled if the couple moved to Florida and got a divorce: A couple got married in Louisiana under a covenant marriage which requires marriage counselling prior to obtaining a divorce. After several years, the couple moved to Florida and decided to end their marriage. The wife files for divorce in Florida and swears that the marriage is “irretrievably broken.” Although, the couple is legally married under Florida law, Florida does not apply Louisiana’s rules of covenant marriage. Florida only applies its no-fault divorce law, and the wife is allowed to obtain a divorce by simply swearing that the marriage is “irretrievably broken.” As a result, the wife is not required to prove fault or complete counseling, even though those were conditions of her covenant marriage in Louisiana. The Florida court proceeds under Florida law and ultimately grants the divorce based on irretrievable breakdown.

The Role of Counseling and Mediation

Under Florida Statute § 61.052(2), the court may order counseling or mediation to try to work through some of the issues in the case. Additionally, the court might choose to continue the divorce proceedings for up to 3 months. Counseling and mediation are often used when one of the parties denies that the marriage is broken and when there are minor children involved. The goal of counseling and mediation is to access whether reconciliation is a possibility and to determine the child’s best interest. Unsuccessful counseling and mediation do not prevent a divorce from continuing to finalization. These methods are only used to confirm that the marriage is “irretrievably broken.” and/or to look out for the best interest of the child. Again, Florida courts prioritize the emotional and psychological well-being of children. The court may believe that reconciliation of the family is possible and beneficial. In multiple Florida judicial circuits, mediation is mandatory before a trial can take place in family law cases that involve conflict in the following areas: property distribution, alimony, child support, and timesharing. The court will order mediation after each party has disclosed all of its mandatory disclosure documents. Generally, parties are only required to show up to mediation sessions. There is not requirement to come to a resolution, agree to anything, or even stay for the entire length of mediation. Even when counseling and mediation are unsuccessful there are still added benefits to participating in them. Counseling and mediation can open the door to improved communication and eventually resolve disputes before trial. Avoiding a trial results in significantly reduced legal costs. The cost of taking a divorce case to trial in Florida can cost upwards of $15,000.

What does counseling look like in Florida?

Florida courts can order the parties to attempt counseling prior to obtaining a divorce. Remember, the judge may order counseling when there are minor children involved and/or when one party disputes that the marriage is “Irretrievably broken.” Additionally, parties can agree to attempt counseling on their own during a divorce. There are many different forms of counseling, and their use is determined on a case-by-case basis:

1. Individual counseling: When the spouses meet with therapists or counselors at separate times to work through issues in the marriage.
2. Marital counseling: When both spouses meet with therapists or counselors at the same time to work through issues in the marriage.
3. Religious counseling: When spouses meet with members of their religious organization to gain perspective on the issues in their marriage.
4. Clinical counseling: When spouses meet with licensed mental health professionals who focus on psychological aspects related to issues in the marriage.

The importance of honest communication with your attorney

Being honest with your attorney is one of the most important and fundamental aspects of a divorce case. An attorney can only work with the facts they are given. Hiding facts or mistakes and not providing your attorney with complete information can severely damage your case. Florida judges value honesty and transparency when determining the outcome of cases. Providing your attorney with inaccurate or incomplete information could result in an unintentional false representation to a judge. This may result in a judge looking down upon your attorney and lead to unwanted rulings.

Attorney-client privilege

There is absolutely no reason to lie or mislead your attorney because attorney-client privilege exists. Attorney-client privilege is a legal doctrine or rule that protects the communication between a lawyer and their client. Attorney-client privilege applies to all forms of communication including emails, texts, phone calls, in-person meetings, and more. The privilege exists with the client. Therefore, only the client can waive attorney-client privilege. But, there are some circumstances where attorney-client privilege does not apply such as:

• When conversation is made in the presence of a third party (other than necessary legal aids).
• When conversation is being used to commit a future crime or fraud.
• When a client discloses otherwise privileged information to a third party.

In practice, attorney’s and clients should avoid discussing their case in public or over a speakerphone because that may waive attorney-client privilege.

Conclusion

In conclusion, Florida has a no-fault divorce system. A no-fault divorce is a traditional divorce where neither spouse needs to prove any wrongdoing or fault to obtain the divorce. To obtain a divorce in Florida, it must be shown that the marriage is “irretrievably broken.” A showing by one of the spouses that the marriage is “irretrievably broken” is generally enough to obtain the divorce. “Irretrievably broken” does not mean that the parties have agreed to end the marriage or pursued counseling to try and reconcile the marriage. Also, showing that a marriage is “irretrievably broken” does not require a showing of fault or wrongdoing by one of the parties to the marriage. Prior to 1971, Florida required a showing of fault to obtain a divorce. Florida moved away from the fault system in favor of a no-fault system in 1971. The purpose of this change was to simplify the divorce process, reduce conflict between parties, and lower the burden on the court. There are two paths to obtain a divorce in Florida. The first way is by Affidavit of Petitioner which requires both parties agree that the divorce is “irretrievably broken.” This path is much more time efficient and may save the parties a substantial amount on money. The second way is by judicial finding which occurs when parties disagree as to the marriage being “irretrievably broken” or when there are minor children involved. Although Florida has a no-fault divorce system, it must be noted that improper conduct still matters in relation to sub issues within the marriage. For example, misconduct may affect things like child custody, alimony, or marital property division. A Guardian ad Litem is a third party that is appointed by the court to represent the interest of minor children while a family law case is taking place. They ensure that someone is looking out for the best interests of the child. Florida does allow covenant marriage. Florida does recognize out-of-state covenant marriages, but the Florida no-fault divorce rules will still apply during divorce proceedings. Florida courts may order counseling or mediation to try to work through some of the issues in the case. Unsuccessful counseling and mediation do not prevent a divorce from continuing to finalization. These methods are only used to confirm that the marriage is “irretrievably broken.” and/or to look out for the best interest of the child. Attorney-client privilege is a legal doctrine or rule that protects the communication between a lawyer and their client. There is no reason to lie, mislead, or neglect to tell your attorney relevant information because doing this may negatively impact your case.