USA – FLORIDA Law and Practice Contributed by: Elisha D. Roy, Sasser, Cestero & Roy
1. Divorce 1.1 Grounds, Timeline, Service and Process Per the Florida Statutes (“Fla. Stat.”), which are the codified, statutory laws of Florida, in order to have subject matter jurisdiction and to com - mence dissolution of marriage proceedings in the State of Florida, one of the parties must reside in the state for six months prior to filing (Fla. Stat. § 61.021). Subject matter jurisdiction is required for a Florida court to dissolve the marriage. Personal jurisdiction is required for a Florida court to adjudicate support and property rights. Personal jurisdiction can occur by service in the State of Florida, but can also be obtained if served outside the state and the required information is contained in the initial pleading which primarily is that the parties maintained a matrimonial domicile in Florida or resided in Florida prior to the filing, even if not with the spouse. These are the same grounds for same- sex spouses. Florida does not allow civil unions. Residency is relevant in determining subject matter jurisdiction in Florida. A party must reside in Florida for six months prior to filing a Petition for Dissolution of Marriage. Under Florida law, residency constitutes an actual presence and intent to reside in the State of Florida. Domicile is not relevant to determining subject matter jurisdiction in divorce matters, but it does matter for personal jurisdiction. Domicile refers to where a person has a fixed and permanent home. However, they may not actually reside there. See Latta v Latta, 645 So. 2d 1043 (Fla. 1st DCA 1995). Additionally, nationality is not relevant in deter - mining jurisdiction in divorce matters. An indi - vidual can establish residency in Florida without
being a US citizen so long as they meet the six- month residency requirement. See Markofsky v Markofsky, 384 So. 2d 38 (Fla. 3rd DCA 1980). A party can contest jurisdiction in divorce mat - ters on the bases of lack of personal jurisdiction or subject matter jurisdiction. A party can apply to stay proceedings in Florida in order to pursue divorce proceedings in a for - eign jurisdiction. A party may file a motion to stay or for an anti-suit injunction. Florida courts consider the following factors when addressing this issue. • Florida is a first-to-serve state, not a first-to- file state. Mabie v Garden St. Mgmt. Corp., 397 So. 2d 920, 921 (Fla. 1981) (citing Mar - tinez v Martinez, 153 Fla. 753, 15 So. 2d 842 (Fla. 1943)). • Where courts within one sovereignty have concurrent jurisdiction, the court that first exercises its jurisdiction acquires exclusive jurisdiction to proceed with that case. This is called the “principle of priority”. 20 Am. Jur.2d Courts § 128 (1965). • The “principle of priority” is not applicable between sovereign jurisdictions as a matter of duty. As a matter of comity, however, a court of one state may, in its discretion, stay a proceeding pending before it on the grounds that a case involving the same subject matter and parties is pending in the court of another state. Bedingfield v Bedingfield, 417 So. 2d 1047, 1050 (Fla. 4th DCA 1982). • This does not mean that a trial court must always stay proceedings when the prior proceedings involving the same issues and parties are pending before a court in another state but only that ordinarily this should be the result. “There may well be circumstances under which the denial of a stay could be
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