How to Determine Residency for a Divorce

How to Determine Residency for a Divorce

military member taking off his wedding ring

When one or both spouses want to end their marriage, they must ask a family court judge to dissolve it legally. However, you cannot file a divorce petition in a court in any state. Instead, you will need to meet the state's residency requirements before you can pursue a divorce in the state in which you file. States have residency requirements to help them establish jurisdiction over the parties to the divorce. A court with jurisdiction has the legal authority to issue a judgment. The state in which you file can also have an impact on the outcome you might receive. If you can file for divorce in both Florida and another state, it is a good idea to talk to an experienced divorce lawyer at The Law Offices of Jonny Kousa, P.L. to determine where you should file your petition.

How Is Residency Determined in Florida?

Florida's residency requirement for divorce is found in § 61.021, Fla. Stat. (2021). Under this statute, you must have established residence in the state for at least six months, or your spouse must have been a resident of Florida for a minimum of six months before the date you file for divorce. Before a court can hear your case in Florida, you will be required to prove that either you or your spouse has resided in the state for the minimum necessary amount of time. You will have to present evidence of residency status to the court, or your case could be dismissed.

Simply owning a vacation home in Florida and visiting a couple of times per year is not enough. However, Florida does provide exceptions for members of the military.

Military Exceptions

A family court in Florida can take jurisdiction of a military service member who last resided in Florida before being stationed in a different state or overseas because of their military service and still considers Florida to be their primary residential state. See, e.g. Coons v. Coons, 765 So.2d 167 (2000). This means that the absence of a military service member from Florida for military service elsewhere will be excused as long as Florida is still considered to be their home state of residence. Servicemembers stationed in Florida also have the presumption of being residents of Florida under § 47.081, Fla. Stat. (2021).

This means that if you are a military service member or a military spouse who wants to get divorced, you can file a petition in a court located in one of the following three places:

  • The state where you reside;
  • The state where the service member is currently stationed, or
  • The state where the service member claims legal residence.

If you have a choice, the state where you file your petition will determine how your property will be divided, any grounds that might be required, and any child support, spousal support, or child custody matters. If you are a military spouse or a military servicemember with options of filing in more than one state, you should speak to an experienced divorce attorney who can help you weigh your options.

How Do You Prove Residency?

You can establish the residency of yourself or your spouse by proving the following things if you are not going through a military divorce:

  • You were physically present in Florida for at least six months before filing your petition, or
  • Your spouse was physically present in Florida for at least six months before filing your petition, and
  • You or your spouse intended to remain in Florida as your state of residence.

Physical presence does not mean that you could not have taken a vacation in a different state within those six months. However, owning a vacation property or visiting Florida with no intention to claim legal residence will not qualify you to file for divorce in Florida.

You can use the following things to establish residency in Florida:

  • Signed apartment lease or mortgage statements
  • W-2s or paystubs for a permanent job in Florida
  • Proof that you use your address in Florida for official business
  • State income tax return filed in Florida
  • Vehicle registration in Florida
  • Valid Florida driver's license
  • Testifying about your intent to remain in Florida

You can also present other types of evidence. The court will look at the circumstances and the evidence to determine whether or not it can assert jurisdiction to hear your divorce case.

Get Help From an Experienced South Florida Family Law Attorney

If you want to file for divorce in Florida but are uncertain whether or not you meet the residency requirements in the state, you should speak to an experienced family law attorney at the The Law Offices of Jonny Kousa, P.L. as soon as possible. A divorce attorney can help you determine the jurisdiction in which you should file your case. Contact us today for a free consultation at (954) 626-8071.

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