Before 1971 there were all sorts of grounds for divorce in Florida: Adultery, Cruelty, Violence, Desertion, etc.  Then the “no-fault” statute was passed that we live with today.

Most states have a similar concept of “no fault divorce” which just means you don’t need some event like an affair or a physical fight in order to trigger your right to divorce.

Today, the only grounds for divorce in Florida are (1) the marriage is irretrievably broken or 2) one of the parties has been mentally incapacitated for at least three years.  Fla. Stat. Sec 61.052.

In addition to one of these two grounds, the petition for a dissolution of marriage must also allege that one of the spouses has a Florida residency for more than six months prior to the filing of that petition.  Additionally, to file in Collier County, Florida, one of the spouses must live in Naples, Florida or one of the other communities within the county.

What does “irretrievably broken” mean?  In practice, it means what you want it to mean.  As a younger attorney, I did several criminal trials and the concept of “reasonable doubt” was an equally amorphous concept.  The jury or judge determined what “reasonable doubt” meant.  In the case of divorce, a divorcing party determines what “irretrievably broken” means.  Most of the time, that means the party simply says, “My marriage is irretrievably broken.”  In front of a judge while proving up the divorce on the final court date, I always clarify in the final questions “Your marriage is Irretrievably broken and that means that you tried to work it out but you couldn’t work it out, correct?”

Because the grounds of the marriage being irretrievably broken is so easy to establish, almost no one invokes the other grounds that one of the parties has been mentally incapacitated for at least three years.

In fact, proving Florida residency is the more difficult factor.  While testimony is usually sufficient, a driver’s license, an identification card, or voter registration can adequately prove residency sometimes a notarized affidavit is necessary. This is Florida, where we have a lot of part-time residents so extra scrutiny is given to this particular element.

These elements sound like the courts are trying to keep marriages together but it is your right to get a divorce in Florida. “If, at any time, the court finds that the marriage is irretrievably broken, the court shall enter a judgment of dissolution of the marriage.” Fla. Stat. Sec. 61.052.(2)

All of this is not to say that adultery, cruelty, violence, desertion or any other factors have no effect on a divorce but rather to say that they are not necessary.  The myriad of other issues that present themselves after the filing of a divorce are often colored by the causes of the divorce even though they are not officially legally relevant.  The judge deciding these matters is still, and will always be, a human being subject to the same emotions, sympathies and prejudices the rest of us are.

Many of the old grounds for divorce are separate causes of action in themselves.  Cruelty and violence are now domestic battery. Desertion is a cause for contribution to the marital estate.

More importantly, you and your lawyer should be crafting a brief and compelling narrative of what happened in your case because that will inevitably determine what will happen to your case.  Contact my office in Naples, Florida to learn more about the divorce process and what your next steps should be.