How does domestic violence affect divorce in South Florida?

Divorce and Domestic Violence

Not all divorces are created equal. The first determination in analyzing a divorce is whether or not the divorce is contested or uncontested.

In an Uncontested Divorce, the parties must agree on the division of assets and liabilities. In addition, if there are children, the parties must agree on a Timesharing Plan (formerly known as custody).

A Parenting Plan determines which parent has physical custody of the child(ren) on which days and on which holidays. The provisions of the agreement are set forth in a document known as a Marital Settlement Agreement (MSA) which will be signed and notarized by the parties. This MSA will form the terms of the Final Judgment. The court will assume jurisdiction as long as one of the parties can prove that they have been a Florida resident for at least six (6) months prior to the filing of the petition for Dissolution of Marriage.

Some Contested Divorces can be subdivided as a Military Divorce or International Divorce.

Military Divorce

A “Military Divorce” is one in which one or both parties are members of the military. There are separate provisions that relate to a person(s) serving in the military. If you are in the military, you can still get a divorce. The only exception is if the Respondent is on active deployment.

International Divorce

The term “International Divorce” is typically applied to cases where one party resides outside the United States. As long as one of the spouses has lived in the state of Florida for a minimum of six (6) months, the court has the jurisdiction to grant a divorce.

Jurisdiction regarding property division, support, and time-sharing depends on a number of factors, including whether the foreign country’s court or the Florida Court has jurisdiction. Typically if the children or property is located in a foreign country, Florida courts have no jurisdiction.

In summary, if you have lived in the state of Florida for a period of six (6) months or more, you can get a divorce. Florida Statutes requires proof of a continual presence immediately prior to the filing of the Dissolution of Marriage but does not require a review of the legal/immigration status of the Petitioner.

Florida Is A No Fault Divorce State

Since Florida is a no-fault divorce state, issues such as abandonment, adultery, and which of the parties is responsible for the breakup are not taken into consideration. However, one issue that is taken into consideration is the wasting of marital assets. Although this issue is taken into consideration to assure that one of the parties is not spending joint marital money on others outside of the marriage, the court will also assess whether allegations that one party is recklessly spending inordinate sums of money outside of the marriage. Reportedly, this was one of the main issues as to why Jennifer Flavin (Sylvester Stallone’s wife) filed for divorce.

Domestic Violence Divorce

Sometimes divorces have a domestic violence component. A request for an injunction against domestic violence can be made whether or not the parties are married. To obtain a Domestic Violence Injunction (Restraining Order) an individual must go to the court assigned to their county. They must give the clerk a statement about the abuse they have suffered from their spouse. The statement is then reviewed by the Judge. If the allegations meet the criteria set forth by the Statute, a temporary ex-parte (one-sided) Injunction Against Domestic Violence is entered, known as a Restraining Order. This document will be served by the Sheriff on the alleged perpetrator advising them that a Temporary Order against domestic Violence has been entered against them, and they are to stay away from the alleged victim, their home, work/school location, and any other location as set forth in the Temporary Order Against Domestic Violence.

The Injunction will state they are not to have any contact with the victim. The Injunction will set forth the date for another hearing in which both sides will be heard. At the hearing, one of two things will happen. If the allegations of abuse are found to be valid, the court will usually enter an Order Against Domestic Violence for one (1) year. If the court finds the evidence faulty, either in fact or as a matter of law, the court will dismiss the Injunction.

If the parties are living together and a Domestic Violence Injunction is entered, the offending spouse will have to leave the marital residence. A Temporary Child Support Order is often entered at this time, pending further hearings on this matter. A Domestic Violence Injunction is not considered to be a criminal matter. It is a hybrid between criminal and family law. If the Defendant does not violate the Injunction–all well and good.

If the Defendant is found to have violated the Injunction, it then becomes a criminal matter. Remember that once Domestic Violence is filed and a divorce is pending before a Court, the Domestic Violence case will be transferred to the judge assigned to the divorce case. The idea is that one judge can be aware of the issues between the parties.

If you are seriously considering divorce or have questions about domestic violence and divorce, contact us online or call (786) 558-4950 today!