In spite of all the bleak statistics everyone has heard about the likelihood of a marriage ending in divorce, people have always entered into marriages full of hope. The newest statistics indicate that in Florida, the marriage rate is increasing while at the same time, the divorce rate is decreasing. Given these different factors, it is not surprising that sometimes, one spouse in a marriage, does not “want” to get divorced and when faced with the other spouse filing for divorce, questions whether it is possible to stop it from moving forward.
Short Answer: Not Really
If one spouse is really intent on getting divorced and the other does not want to get divorced, there are instances in which the divorce may be delayed for a bit of time, but most likely, finalizing the divorce is inevitable. The reason for this is simple: Florida is a no-fault state.
The No-Fault Principle in Florida
The Florida divorce system operates on the principle of no-fault. This means that in order to seek a divorce, neither party needs to prove that the reason the marriage is over is due to the fault of one of them. Further, unlike other states that require a separation period before being able to file for divorce, Florida has no such requirement. It is worth noting that Florida has a “cooling-off period;” however, that simply provides a final judgment cannot be entered until after 20 days have elapsed from the date of the filing the petition for dissolution of marriage. Pursuant to Florida Statute,§ 61.052 here are only two grounds for a divorce, with one being required to be pled in the petition for dissolution of marriage: The marriage is irretrievably broken or mental incapacity of one of the parties. In this last circumstance, the party must have been adjudicated incapacitated for at least three years prior to the filing for divorce. The principle of no-fault and only needing to allege the marriage is irretrievably broken (which is the most common allegation pled), makes it fairly easy for the spouse seeking the divorce to move the process forward, and conversely, much more challenging to stop the process once it has been initiated.
But What if the Marriage is NOT Irretrievably Broken?
The concept of a marriage being “irretrievably broken” essentially means that the marriage cannot be saved and all attempts of reconciliation have been attempted and failed. If there is an allegation in the petition that the marriage is irretrievably broken, the other party does not deny it is in their response to the petition, and the court finds that the marriage is indeed irretrievably broken, then the divorce will be granted. However, the statute provides that if one party has denied that the marriage is irretrievably broken or if there is a minor child of the marriage, then the court may take some actions that would delay the proceedings. Under these circumstances, there would be a hearing and based on the evidence presented, the court may order one or both parties to consult with a marriage counselor, psychologist, psychiatrist, religious advisor, or “any other person deemed qualified by the court and acceptable to the party or parties ordered to seek the consultation. The court may also decide to continue the proceedings in order for the parties to attempt reconciliation. This continuance has to be for a reasonable period of time, not to exceed three months. Lastly, the court may utilize the catch-all by “taking any such action as may be in the best interests of the parties and the minor child of the marriage.”
How The Above Works Practically
it is extremely rare for a party to deny that the marriage is irretrievably broken. The reasons it is rare are the practical consequences of going through the above process. Having a hearing in order to provide evidence of why your marriage can, and should, be saved is likely to be an awkward, uncomfortable, and distressing experience. Further, the party seeking the divorce may believe the other party is using the denial as just an attempt to thwart or strategically delay the process. This party will then work their hardest to convince the judge that there is no saving the marriage, making that hearing even more difficult. The overriding consideration, however, is that the court and the State of Florida will not force someone to remain married if they do not want to remain married.
When the Parties Want to Reconcile (Or, At Least Try)
In instances when both parties decide they want to attempt reconciliation, there are some options to halt the process while they see if they can save the marriage. The person who filed the petition could file a motion, or both parties could file a joint motion, to abate the proceedings. This lets the court know the parties are “pausing” the divorce while they attempt reconciliation. Keep in mind, however, that if the party seeking the divorce does not agree, the other party cannot unilaterally abate the proceedings. Another option is the party who sought the divorce and filed the petition could voluntarily dismiss their petition. If both parties filed petitions, they could voluntarily dismiss both their petitions. By voluntarily dismissing the petition or petitions without prejudice, the process is not paused, but instead is completely ended. If reconciliation does not work, either party could file another petition for dissolution of marriage.
Conclusion
The no-fault system of divorce in Florida and the marriage being irretrievably broken being sufficient grounds for a court to grant the divorce makes it challenging for someone seeking to stop the process. Although there are avenues to have the court delay the process if there is a denial that the marriage is irretrievably broken or if there is a child involved, the practical considerations make it challenging to contest the divorce based on one party’s desire to save the marriage. Ultimately, unless the parties decide to reconcile and dismiss the divorce action, the divorce might be delayed, but will inevitably be granted. If you would like to discuss this issue or any other family law issue, please schedule a consultation with the attorneys of Artemis Family Law Group.
