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Establishing Legal Grounds for Divorce: What Happens When One Party Denies The Marriage Is Irretrievably Broken

On Behalf of | Nov 24, 2016 | Divorce, Firm News

In Florida law, a divorce can be granted by the court for two reasons: if one party is determined to have a mental incapacity for the previous three years, or if the marriage is irretrievably broken. To establish the latter, either both parties in the divorce filing must agree that their marriage is irretrievably broken or it must be established by the court.

If the responding party to the divorce papers denies that the marriage is irretrievably broken or there is a child who is a minor in the family or both, the court will act according to Florida Statute Chapter 61.052, Dissolution of Marriage. Here is a quick guide to help you through the process and what actions the court might take.


Order Court-Acceptable Counseling

The first of three actions listed in that chapter of Florida’s Statutes is to order the couple to consult a marriage counselor. The counselor must be someone that the court finds qualified for this purpose, and can include the following:

  • Religious figure—a licensed minister, priest, rabbi, and so on
  • Psychologist or psychiatrist—fully trained and licensed according to Florida’s regulations
  • Family counselors—fully trained and licensed according to Florida’s regulations

The choice of marriage counselor must also be deemed as acceptable by both parties of the divorce proceedings before any consultations or sessions. This is to ensure that they are neutral and that neither party later complains.

Allow for Reconciliation

The second court action is to continue the divorce proceedings for a period of no more than three months. This is to allow for the couple to potentially reconcile either on their own or during marriage counseling, or for it to be made clear to the court that the marriage is irretrievably broken regardless of the respondent’s denial. Here is how a reconciliation works:

  • Fill out the Notice of Voluntary Dismissal form
  • Present the original form to the same Clerk of the circuit Court where the original divorce filing was made
  • Both parties explain that they want to stop the divorce process and resume their marriage
  • Distribute copies of the Notice to every party involved in the divorce proceedings (lawyers, spouses, court officials, marriage counselors, etc)

If in this three month period there is no reconciliation, the court will decide if the marriage is irretrievably broken on the basis of all evidence, testimony, and court interactions between each party.

Action in the Best Interests of The Child & Marriage

The court might also take specific actions in the best interests of any minor children in the marriage, as well as in the best interests of the marriage parties. They will base these actions on the following criteria:

  • Health and safety—if there is any evidence of abuse or neglect of both children and spouse
  • Emotion and development—the extent to which each spouse meets the needs of the child first and the other spouse second
  • Positive communication—both spouses are encouraged to co-parent and interact positively about and around their children
  • Moral fitness—if there is any evidence of frequent cheating or substance abuse and other illegal activities that could impact the children and spouse

Testimony and evidence will be taken to establish any of the above, and if they are established the court will act to protect the safety and well-being of the children and the spouse.