Considering divorce? Your state of residency matters.

By: Nicole Goetz, Esq.

Many people and families visit Florida every year and many opt, ultimately, to make Florida their permanent residence. Florida is a wonderful state to visit and a great state to call home with its beautiful weather, affordable housing, creditor protection, and low property taxes. However, your decision to make Florida your residence and even your presence in Florida can impact your marriage.

Family law in the 50 states differs and there are limited uniform laws relating to marriage, separation, divorce, alimony, property distribution, custody and child support. There are even differences between the states (and other countries) on such things as the elements necessary for a valid marriage or divorce, as well as the validity, enforceability and interpretation of marital agreements. These differences in the law between jurisdictions can have a significant impact on your marriage.

For instance, a couple married in Texas 18 years ago moves to Florida and the wife files for divorce here. While Texas may severely limit alimony and the length of time it is paid, the wife will enjoy a presumption in favor of permanent alimony in her Florida divorce. 

By way of further example, a couple enters into a prenuptial agreement in Canada that directs the division of those assets owned by the parties at the time of the agreement. There is no reference in the agreement as to how the parties’ subsequently acquired property will be handled, and since the parties failed to update the document or create a new document when they immigrated to Florida two years ago, Florida law will likely apply to determine the division of the remaining property in their Florida divorce.

Because differences in the law can impact significantly the outcome of family law matters, jurisdictional disputes or litigation sometimes ensues. However, even if litigation is unlikely, you should be aware of how your decision to become a Florida resident, or even how your decision to spend time in our state, can subject you to Florida law and the impact of its application. While certainly not exhaustive, here are some quick facts of which to be aware:

• Only one spouse must be a resident of Florida for the 6 months immediately preceding the filing of a divorce to enable Florida to assume jurisdiction over a divorce filed here.
• Even if you are only visiting Florida, if your spouse has been a resident in Florida for the requisite time, you can be served with a Florida divorce that you may be required to defend.
• If you were a Florida resident but you are now no longer a Florida resident, you could still, in certain circumstances, be served with a Florida divorce outside of Florida that you are required to defend.
• In the absence of a valid premarital or marital agreement or other circumstances that effectively require the application of different rules or laws, Florida law will generally apply to you and your property in a Florida divorce.

Jurisdictional issues in family law matters, especially those that can be attributed to the parties’ connections to multiple states or even countries, can be extremely complicated. The outcome of these issues turn on the specific facts of the case, and can alter the end result of a party’s family law matter.

Those interested in exploring how Florida law may impact their family law issues, including any existing family law agreements, may contact me at nicole.goetz@henlaw.com or by phone at 239-344-1239.