15 Jan What Do I Do if my Spouse Contests the Divorce?

What if my Spouse Contests the Divorce?

What happens if your spouse refuses to sign off on the divorce because they don’t want the marriage to end? Do I need my spouse’s consent? This is a common question and many Miami, Florida residents appear to be under the impression that, in order to have your Florida petition for divorce granted, that the other party must agree to the divorce. This is simply not the case. The procedure can go a few ways, but for the sake of discussion, let’s say that you have been married for five years, don’t have any children, have been separated (living apart) for a while and you just want to petition the Florida courts for a divorce and “move on”.

Option 1: File for Divorce and Spouse Does not Respond:

The first way that this can go is that you file for divorce in Miami’s 11th Circuit Family Court. The paperwork is properly completed, filed and served, etc., and your soon to be ex-spouse won’t respond to the complaint. If your spouse simply does not respond, we would then move for a default judgment and  the court will, most likely, grant the petition.

Option 2: File for Divorce and Spouse Contests the Divorce:

A second way in which this could go is that the spouse responds to the petition and attempts to have it dismissed (they “contest” the divorce). They could potentially do this by making a “clear showing” that there was either actual reconciliation between you and your spouse or intent to reconcile your marriage. However, while Florida public policy encourages these types of reconciliations, if the facts show that the denial of the petition for dissolution would simply extend the length of the broken marriage, the dissolution will still be granted. There is clear precedent in the Miami, Florida family courts that the feelings of one just one of the spouses are insufficient to sustain the “clear showing” of the intent to reconcile the marriage. The required “clear showing” of an intent to reconcile the marriage must be held and pursued by both spouses.  As one Florida court has observed, “[i]f one marital partner has made the considered decision that the relationship should be terminated, perhaps it may properly be said that the marital relationship has broken down” (Riley v. Riley, 271 So. 2d 181, 184 (Fla. 1st DCA 1972)).