When people get divorced, we often see that they are divorcing because of “irreconcilable differences”. Why do people say that?
This is usually because the divorce is happening in a no-fault state. In Californica, where many celebrity divorces take place, the no-fault term they use is “irreconcilable differences”. In Florida, they use the term that the marriage is “irretrievably broken”. In Florida, one of only 17 no-fault states[1], there is no option to cast blame as to who is the reason for the marriage ending.
In fact, in Florida, when you file your petition for divorce, you only have two choices as to why you want the court to grant you a divorce. The first option is the marriage is “irretrievably broken”. The second option is that “[o]ne of the parties has been adjudged mentally incapacitated for a period of 3 years” prior to the filing for divorce. While we may believe our spouse is crazy, in order to choose this option as to why you are divorcing, in Florida you must also attach a copy of the Judgment of Incapacity.
Although all states have some form of no-fault divorce, in other states you can allege adultery, abandonment, or abuse as a reason or grounds for divorce.
Does it matter?
Not really. In Florida, the courts divide property and assets of the marriage based on specific factors listed in the Florida Statutes[2]. The factors for how to divide the property can include an unequal distribution based on interruption of person careers, the desirability to keep a particular asset, intentional waste of marital assets within the last two years, or other factors. This possibility of unequal distribution is where a possible “fault” of one spouse can be brought up in court. For example, abandonment may not be an eligible reason to get divorced but it could be a reason for one spouse to get the marital home based on the reason that the other spouse left.
In Florida, alimony is also based on factors listed in the Florida Statutes[3]. A possible “fault” of one spouse can also be brought up in court regarding alimony. Florida courts may “may consider the adultery of either spouse and the circumstances thereof in determining the amount of alimony, if any, to be awarded.” This means that even though adultery may not be an eligible reason to get divorced, it could be a reason for a spouse to get more alimony if the other spouse used marital money during their adultery (hotel rooms, plane trips, etc).
The state that you reside in will determine whether your divorce will be no-fault. Most states have some residency requirement before you file a divorce there. In Florida, you must be a resident of the state for six months prior to filing for divorce[4]. You will need to prove this residency to a judge by showing your Florida Driver’s license or other valid proof of residency.
Because each state is different, you should consider meeting with an experienced family law attorney to understand your state’s no-fault status and residency requirement. An initial consultation/assessment can ease your fears and ensure your case is handled by a professional who knows what they are doing. There is no substitute for the advice an experienced family law attorney can provide. You may find a great value in the fees you pay for an attorney to handle your paperwork correctly and counsel you about the legal process. Contact Feher Law to schedule your family law consultation at 727-359-0367, Kfeher@FeherLaw.com, or through our website at www.FeherLaw.com.
[1] No Fault Divorce States 2021, World Population Review (Feb. 8, 2021), https://worldpopulationreview.com/state-rankings/no-fault-divorce-states
[2] Florida Statute §61.075 (2019).
[3] Florida Statute §61.08 (2019).
[4] Florida Statute §61.021 (2019).