filing dissolution of marriage (divorce) actions
Note: This section is for use or distribution by Brevard County, Florida, Clerk of the Court and other court personnel to all persons who seek a dissolution of marriage (divorce) but are not represented by an attorney. This packet is for use by persons seeking a non-simplified dissolution of marriage (divorce). You may qualify for a simplified dissolution of marriage. Ask the Clerk's office which procedure is appropriate for you.
Filing the Petition
Notifying the Respondent of Your Petition
Answers, Defaults, Counterpetitions, and Discovery
Final Hearings
A PRO SE is a person representing his/her own interests without hiring a lawyer.
DISSOLUTION OF MARRIAGE is the term used by Florida's court system for a "divorce."
The PETITIONER is the person filing a Petition for Dissolution of Marriage and may be either the Husband or the Wife.
The RESPONDENT is the Petitioner's spouse, the person who is being "sued for divorce," and may be either the Husband or the Wife.
The CLERK is the Clerk of the Circuit Court for Brevard County and is the official who receives all of the paperwork to be placed in the court file for the Judge during the dissolution action.
A JUDICIAL ASSISTANT is the Judge's secretary.
An AFFIDAVIT is a statement of facts sworn under oath to be true and, if untrue, could subject the person to prosecution for criminal perjury charges if the statements were known to be false when made.
Paperwork
1.CONTENTS: Some information must be included in every paper you send to the Court. All papers filed in your case MUST have:
a. The "STYLE" of the case (for example, "IN RE: The Marriage of JANE DOE, PETITIONER, V. JOHN DOE, RESPONDENT"),
b. The CASE NUMBER,
c. The NAME, MAILING ADDRESS, and PHONE NUMBER of the party filing the paper, and
d. Except for the initial Petition, a "CERTIFICATE OF SERVICE" to show that a copy was sent or given to the other person involved in the case on a certain date. The Certificate is usually in the following form: "I HEREBY CERTIFY that a true and correct copy of the above paper has been furnished by ____U.S. Mail/____hand delivery/____telefax/____courier to (name of other person) at (address of other person), this _____ day of (month), 19_____.
(signature of person submitting paper)."
2. WHO GETS WHAT AND HOW:
a. ORIGINALS: The originals of any papers for your case should be either taken in person or sent by U.S. Mail to the Office of the Clerk of the Court. Submitting papers to the Clerk is referred to as "FILING" the papers with the Clerk. b. COPIES:
(1) THE OTHER PERSON (RESPONDENT) must receive a copy of any paper you file with the Clerk. How the Respondent receives that copy depends on what the paper is. Providing a copy of the initial Petition to the Respondent is done by "SERVING" them with, or giving, them the papers through delivery by a deputy sheriff or process server or, in some cases, by publishing a notice in the newspaper. This will be explained in detail below in section (B) "NOTIFYING THE RESPONDENT".
After the initial Petition has been served on the Respondent, copies of any other papers filed in your case may be "served" on the Respondent in less formal ways. At that point, you (or anyone else) may hand deliver the papers to the Respondent, or, you may send the papers through the U.S. Mail. If you use a fax machine to send the papers to the Respondent, you must also send the papers by one of the other ways. If the Respondent has an attorney you would use one of these methods to serve the papers on the attorney instead.
(2) KEEP A COPY FOR YOUR OWN USE.
The Petition must outline what you, the Petitioner, want to get from the Respondent or what you want the Judge to do. It must always contain the following:
a. The Respondent's full name, address, and social security number;
b. Your full name, address, and social security number;
c. The date and place the parties were married;
d. A statement that the parties are not now living together as Husband and Wife;
e. A statement that the Petitioner OR the Respondent has been a continuous resident of Florida for at least six months before the Petition was filed; and
f. A statement that the marriage is "irretrievably broken".
If a child was born to or adopted by the parties during the marriage and the child is still a minor OR if the wife is pregnant, additional statements should be made in the Petition. A "MINOR" child is a child who is under the age of 18 years when the Petition is filed. The Petition should include the following:
a. The names, date of birth of any minor child(ren) born to the parties during the marriage; the name, date of birth and date of adoption of any minor child(ren) adopted by either or both of the parties during the marriage. If no child has yet been born of the marriage but the wife is pregnant, a statement of that fact should be included.
b. A statement of which party should have custody of the child(ren) (primary physical residential custodian) and that the best interests of the child(ren) will be served by placing the child(ren) with that party.
c. A statement that the other party is entitled to reasonable visitation rights or, if not, what restrictions on visitation should apply and the FACTUAL reasons why visitation should be denied, restricted, or supervised.
d. If child custody is requested by the Petitioner, a statement that the Petitioner needs child support, as well as medical and dental insurance for the child(ren), from the Respondent.
e. An affidavit listing the addresses where each child has lived and with what persons during the last 5 years, stating whether each child has been involved in a request by any other person for custody or visitation rights, naming any other person having any custody or visitation rights with the child(ren), and asserting whether there is a dependency proceeding concerning the child(ren) pending in any court.
A form for this purpose, called a Uniform Child Custody Jurisdiction Act Affidavit, is available from the Clerk's Office (LAW 454).
f. A financial affidavit must be filled out and served on or given to the Respondent along with the Petition. A Financial Affidavit form is available from the Clerk's Office (LAW 458).Spousal Support (Alimony)
If you are requesting spousal support (Alimony) the Petition should include the following:
a. A statement that you need alimony or support from the other party.
b. A statement that the Respondent has the ability to pay alimony or support for you.
c. A financial affidavit must be filled out and served on or given to the Respondent along with the Petition.
A Financial Affidavit form is available from the Clerk's Office (LAW 458).
The Petition may also contain statements concerning the following:
a. The change of your married name back to a maiden or other last name, if you are a female.
b. Property acquired by you and/or your spouse during the marriage, whether land, houses, buildings, etc. or personal property such as cars, stocks, furniture, bank accounts, pension funds, etc., which should be divided fairly between the parties. This includes gifts you have given to each other.
c. Any special interest you might claim to have in any property as a result of (1) your contribution of money from a source outside the marriage for that property or (2) money or services contributed by you for that property over and above that of the other party. FACTS must be stated to tell why you should be given a special interest in the property.
d. Debts and liabilities incurred during the marriage and who should pay them following the dissolution of marriage. e. Any agreement signed by the parties for an uncontested divorce. If you and the Respondent have signed an agreement, it should be attached to the Petition as an exhibit. The agreement must be signed by both parties.
f. Any Temporary Injunction for Protection which is still good. The Injunction's case number should be given in the Petition.
NOTE: At the time of filing the initial Petition, the Clerk of the Court will charge a fee for filing the Dissolution of Marriage action. This filing fee must be paid or waived by the Clerk before the Petition is filed. If you ask for a waiver, you must file an Affidavit of Insolvency with the Clerk. An Affidavit of Insolvency requires you to swear under oath that you are unable to pay the charges, costs, or fees charged by the Clerk or Sheriff for this action. The affidavit will require you to specifically list your income, assets, and financial obligations. Making false statements under oath is a criminal act, a felony, which could mean criminal prosecution and a jail term if convicted.
A form called Affidavit of Insolvency is available from the Clerk's Office (Supreme Court Form 34).
The Clerk of the Court will issue a Summons at the time the Petition for Dissolution of Marriage is filed. The summons will instruct the Respondent that within 20 days after the Petition is given to the Respondent an Answer or some response to the Petition must be filed with the Clerk for the court file and that a copy of the answer or response must be given to you.
The Summons and Petition must be given to, or "served" on, the Respondent by a deputy sheriff or special process server. The Sheriff's office or special process server will charge you a fee for doing this. The Clerk will tell you where the Sheriff's Office is, and you may have that office serve the summons and a copy of the Petition on the Respondent. Or, you may know a person specially appointed by law to serve summons and petitions. In either case, you must give the summons and a copy of the Petition (and a copy of a financial affidavit if child support or alimony is requested) to the Sheriff or process server, along with the Respondent's address, place of work, or other whereabouts. The Sheriff or process server will attempt to serve the papers on the Respondent and will then file a form with the Clerk to show whether the Respondent was served or not. If the Respondent is not found, the process server will have to try again. The Summons and Petition must be left with the Respondent or a member of the Respondent's household over the age of 15 years for there to be proper service. For the Judge to get personal jurisdiction over the Respondent, the Respondent must be found.
NOTE: The Judge must have personal jurisdiction over the Respondent by personal service to be able to order child support, alimony, and in most cases, divide property and debts.
If you do not know where the Respondent lives or works, you can still give notice of your Petition to the Respondent through what is called "constructive service of process". To do this you must file an Affidavit of Diligent Search and Inquiry for Service by Publication stating that you have tried to find out where the Respondent lives. In the affidavit, you must list all the things you did to find the Respondent such as asking friends and relatives; checking telephone directory information; checking with the office of voter's registration or the tax assessor; or any other source of information to locate Respondent's residence. This affidavit must be signed by you under oath and you must swear to the truth of the facts stated in it before a notary public or Court Clerk. The Judge will ask you questions about your affidavit and search, and if the Judge decides you did not try hard enough to locate the Respondent, the Judge will not give you the divorce. A form called an Affidavit for Service by Publication is available from the Clerk's Office (Supreme Court Form 26).
Once the Affidavit is filed, a Notice of Action must then be sent to a newspaper to be published once a week for four consecutive weeks. It must be a newspaper published in Brevard County. You may either give the Notice, along with a stamped envelope addressed to the newspaper of your choice, to the Clerk of the Court to be delivered to the newspaper or you may deliver the Notice of Action to the newspaper yourself. You MUST pay for the publication at the time you ask it to be published if required to do so by the newspaper. After publication of the Notice for four weeks, the newspaper will give you an Affidavit of Publication which MUST be filed with the Clerk of the Court.
A form called Notice of Action is available from the Clerk's Office (Supreme Court Form 24).
NOTE: If you serve the Respondent only by publication, the Judge does not get personal jurisdiction of the Respondent, which means that the Respondent cannot be ordered to pay alimony or child support or divide property and debts. The Judge can normally only give the divorce and determine custody of the child(ren) living with the Petitioner in cases where the Respondent was not personally served.
If there is a signed agreement between the parties to settle the case, the Respondent may voluntarily accept the Petition from you. In a case with an agreement, an Answer and Waiver to the Petition may be filed by the Respondent. With an Answer and Waiver, you can set a final hearing on your Dissolution of Marriage without having the Respondent appear at the hearing. You must file the Answer and Waiver with the Clerk before you call the Judicial Assistant of the assigned Judge to schedule your case for a final hearing.
A form called an Answer and Waiver is available from the Clerk's Office (LAW 453).
This is the written statement made and filed by the Respondent in answer to your Petition. The Answer may admit some of your statements and deny others, or it may admit or deny all of your statements. The Respondent should file the Answer with the Clerk and send a copy of it to you.
If an Answer, Motion, or some other response is not filed by the Respondent within 20 days after the Respondent is served with the Summons and Petition by the Sheriff or process server, or by the date listed in the Notice of Action, you may file a Request to Enter Default asking the Clerk of the Court to enter a Default against the Respondent in your case. A Default, if given, means that the basic statements in the Petition are deemed admitted by the Respondent and no defenses are made, except that the Judge will decide what is in the best interest of the child(ren) on the issues of child custody, visitation, and support regardless of what the Petition states. Even after a Default is entered, the Respondent must still be given notice of any hearings and the final hearing concerning those issues and may appear and present evidence or testimony on those issues.
A form called Request to Enter Default is available from the Clerk's Office (LAW 455).
To have the Default entered, you MUST file a notarized Non-Military Affidavit. The Non-Military Affidavit states that the Respondent is not an active member of the Armed Forces of the United States. Unless you file the Affidavit of Non-Military service, the Clerk will not enter a Default.
A form called a Non-Military Affidavit is available from the Clerk's office (LAW 456).
If the Respondent is in the Armed Forces, a Default cannot be entered by the Clerk. In that case you would then file a Motion for Entry of Default by the Judge, get a hearing from the assigned Judge's Judicial Assistant, and send a Notice of Hearing to the Respondent. At the hearing, the Judge may enter the Default.
Forms called Motion for Entry of Default by Judge and Notice of Hearing are available from the Clerk's Office (LAW 452).
The Respondent may file with the Clerk and serve on you through the mail a Counterpetition for Dissolution of Marriage asking for a divorce, custody of the child(ren), or other things. You will then have to file and serve an Answer to the Counterpetition with the Clerk within 20 days of getting it and send a copy to the Respondent. If you fail to do this the Respondent may ask for a default against you.
In a contested dissolution of marriage case, the Florida Rules of Civil procedure give you certain rights to get information from the other party, for example, by taking testimony from the person under oath before a Court Reporter or by sending the person written questions, called interrogatories, which must be answered under oath. You should consult an attorney in a contested case to assist you in asking for discovery from the other party, witnesses, employers, etc., concerning the issues of the case. The Judge or the Clerk's Office cannot help you prepare your contested case.
WARNING: If there is a minor child of the marriage, you will not be given a hearing date until both you and the Respondent attend a 3 1/2 hour seminar on "Helping Children Cope With Divorce". The Clerk will provide you with a list of organizations offering the seminars to call and schedule your attendance.
If it has been twenty days since you served the Respondent with the Petition for Dissolution of Marriage, both parties have attended the "Helping Children Cope with Divorce Seminar" (if there are minor children of the marriage), and you have an Answer and Waiver from the Respondent, you may set a final hearing by calling the assigned Judge's Judicial Assistant.
If a Default has been entered against the Respondent and there are children involved OR a Marital Settlement Agreement and an Answer and Waiver have been filed, you may set a final hearing but you MUST still send the Respondent a Notice of Uncontested Final Hearing. The Judge WILL NOT be able to hear the case until after the Respondent is given notice of when and where it will be held and given the right to appear and be heard on issues of child custody, visitation, or support. Please note that this hearing may be set before the General Master or a Judge.
A form called a Notice of Uncontested Final Hearing is available from the Clerk's Office (LAW 451).
You must bring ONE of the following to the final hearing to prove that you are a resident of Florida:
a. A witness, 18 years of age or older, who can testify that the witness, by his/her own personal knowledge, knows that either you OR the Respondent are presently a resident of the State of Florida and that you have been a resident of Florida for at least 6 months continuously before the Petition was filed.
b. An Affidavit of Residency, properly filled out by someone 18 years of age or older and notarized. The person signing it must have personal knowledge that you or the Respondent have lived in Florida at least six months before you filed your Petition for Dissolution of Marriage.
A form called Affidavit of Residency is available from the Clerk's Office (LAW 457).
c. A valid Florida Driver's License or Florida Voter's Registration card.
If you cannot prove that you or the other party is a resident of Florida and have been a resident for at least 6 months before the Petition was filed, the Judge cannot give you a divorce.
When you come for the final hearing you will also need to bring with you (1) a Final Disposition Form; (2) a Final Judgment for the Judge to sign; (3) the fee for the Court Reporter because a Court Reporter is required in an uncontested dissolution hearing; and (4) $7.00 for the Clerk's Office to record your Final Judgment. (This charge subject to change.) A form called a Final Disposition Form is available from the Clerk's Office (LAW 122).
You and your witnesses should be dressed properly at the time of your appearance. Shorts, cut off jeans, halter tops, no shoes, etc., show disrespect for the Judge. Unless you are properly dressed, you may not be allowed to have your hearing at that time.
WARNING: If there is a minor child of the marriage, you will not be given a trial date until both you and the Respondent attend a 3 1/2 hour seminar on "Helping Children Cope With Divorce". The Clerk will provide you with a list of organizations offering the seminars to call and schedule your attendance. If the Respondent cannot be found to get personal service, the Jduge may not require the seminar for the Respondent if you ask the Judge not to require it.
When the Respondent files an Answer to the Petition stating that he/she does not agree with what you have asked for in the Petition, and you have filed an Answer to any Counterpetition filed against you, the case is "at issue" and can be set for trial. Either an Answer or a Default MUST be in the court file for the Petition, and for the Counterpetition if one has been filed, before a trial date may be set. The procedure for requesting a Default is discussed in detail above in subsection (C)(2) "DEFAULTS".
Setting a trial date is done by filing a notice stating that the case is ready for trial, that it is an original non-jury action, and giving your estimate on how much time you think will be needed for the parties and any witnesses to testify and present evidence. (Any action filed with the Clerk that does not attempt to modify the result of an earlier judgment in the case is an original action, and dissolution cases are all tried without juries.) The original Notice of Non-Jury Trial must be filed with the Clerk of the Court, and copies of it must be sent to the other party and to the Judge assigned to the case.
A form called a Notice of Non-Jury Trial is available from the Clerk's Office (LAW 450).
After the Notice of Non-Jury Trial is filed and both parties have attended the "Helping Children Cope With Divorce" seminar (if there are minor children of the marriage or if a Judge does not require both parties to attend), the Family Court Coordinator will then set your case on a trial docket with the Judge's other cases and you will get a notice in the mail of the trial period during which your case will be heard by the Judge. Unless you are the first case on the list, you must check with the assigned Judge's Judicial Assistant every day after the trial period starts to find out when you need to come to court.
You must bring any witnesses you need with you to the trial. It is best to have necessary witnesses subpoenaed to make sure they will come to the trial. The Clerk's Office will issue you a subpoena for your witnesses, but you will need to arrange for service of the subpoena by the Sheriff, a process server, or any other person who is not a party but is 18 years of age or older. A written statement or "proof of service" that one of the above people has actually served the subpoena on the witness must then be filed in the court file.
A subpoenaed witness is entitled to witness fees and mileage. You must provide the person serving the subpoena on the witness with a check or money order to pay the fees and mileage at the time the subpoena is served. You must also pay the person serving the subpoena. The witness fee is $5.00 plus 6 cents per mile for the actual distance of the witness' house to the courthouse and back home. (These charges subject to change.) If you do not give the witness these amounts, the witness may not come to the trial and, if not, will not be punished by the Judge.
At the trial you, the Respondent, and all of the witnesses will be sworn to tell the truth. If any party or witness tells a lie during the trial or any other court proceeding, they could either be held in contempt by the Judge and punished or be prosecuted by the State Attorney's office for a felony called perjury.
You must bring all papers, cancelled checks, and other evidence you want the Judge to see with you to the trial. The Judge will make rulings on all of the issues and direct that a Final Judgment be prepared on the rulings. The marriage is NOT dissolved (you are not divorced) until the Final Judgment is SIGNED by the Judge and RECEIVED by the Clerk of the Court. You must bring a Final Judgment form with you or prepare one after the trial. You may need help in preparing the Final Judgment form. The Judge does not prepare it for you. You should see an attorney to help you prepare it so your divorce can be finalized quickly.
You must bring with you to trial ONE of the following to prove that you are a resident of Florida:
a. A witness, 18 years of age or older, who can testify that the witness, by his/her own personal knowledge, knows that either you OR the Respondent are presently a resident of the State of Florida and that you have been a resident of Florida for at least 6 months continuously before the Petition was filed.
b. An Affidavit of Residency, properly filled out by someone 18 years of age or older and notarized. The person signing must have personal knowledge that you or the Respondent have lived in Florida at least six months before you filed your Petition for Dissolution of Marriage.
A form called Affidavit of Residency is available from the Clerk's Office (LAW 457).
c. A valid Florida Driver's License, or Florida Voter's Registration card.
If you cannot prove that you or the other party is a resident of Florida and have been a resident for at least 6 months before the Petition was filed, the Judge cannot give you a divorce.
A Court Reporter is not required for a contested dissolution of marriage case, but you may still request one if you wish a record of the testimony at the trial. If you think you may wish to appeal the Final Judgment ordered by the Judge, you MUST have a transcript of the trial testimony and proceedings to give to the appeals court. A transcript of the trial is the only opportunity for the appellate court to "hear" the parties' and witness' testimony.
You and your witnesses should be dressed properly at the time of your appearance. Shorts, cut off jeans, halter tops, no shoes, etc., show disrespect for the Judge. Unless you are properly dressed, you may not be allowed to have your hearing at that time.
If any kind of Court ruling is needed before the Respondent answers your Petition, such as temporary child support or alimony, temporary custody to protect the child(ren), or a restraining order, a Motion for Temporary Relief asking for that relief can be filed with the Clerk of the Court. In the motion you must state the exact action you want the Judge to take and the FACTS which you believe will prove why your motion should be granted. A copy of the motion must be served on the Respondent by either the Sheriff or any other process server or, if the Respondent has already been served with the Petition, by U.S. Mail.
To have the Judge hear your motion, you must call the office of the Judge assigned to the case and ask the Judicial Assistant for a date and time to have the hearing. After getting a date and time for a hearing, you must then write out a Notice of Hearing stating the Judge's name and the date, time, and place of the hearing. You must file the original Notice of Hearing with the Clerk and send a copy of it to the Respondent.
A Notice of Hearing form is available from the Clerk's Office (LAW 329).
You MUST bring your witnesses to the hearing. If you think the witnesses will not come voluntarily, you can ask the Clerk of the Court to issue a subpoena. The subpoena must be served on the witness to make the witness appear and testify. You will need to arrange for service of the subpoena by the Sheriff, a process server, or any other person who is not a party but is 18 years of age or older. A written statement of "proof of service" that one of the above people has actually served the subpoena on the witness must then be filed in the court file.
A subpoenaed witness is entitled to witness fees and mileage. You must provide the person serving the subpoena on the witness with a check or money order to pay the fees and mileage at the time the subpoena is served. You must also pay the person serving the subpoena. The witness fee is $5.00 plus 6 cents per mile for the actual distance of the witness' house to the courthouse and back home. (These charges subject to change.) If you do not give the witness these amounts, the witness may not come to the trial and, if not, will not be punished by the Judge.
The law forms in the instructions are available on JetForm and in the Brevard County Forms Book.The applicable forms are:
Law 122 - Civil Cover Sheet/Final Disposition Form
Law 329 - Notice of Hearing
Law 450 - Notice of Non-Jury Trial
Law 451 - Notice of Uncontested Final Hearing
Law 452 - Notice for Entry of Default by Judge and Notice of Hearing
Law 453 - Answer and Waiver
Law 454 - Uniform Child Custody Jurisdiction Act Affidavit
Law 455 - Request to Enter Default
Law 456 - Non-Military Affidavit
Law 457 - Affidavit of Residency
Law 458 - Financial Affidavit
Supreme Court Forms:
SC 24 - Notice of Action
SC 26 - Affidavit for Service by Publication
SC 34 - Affidavit of Insolvency