Fort Lauderdale Divorce Lawyer Blog

Before you decide to hire a divorce attorney in Ft. Lauderdale, it is essential that either you or your spouse has been a resident of Florida for 6 months before the filing of the petition. While marital and family lawyers in Broward refer to this as the "residency requirement", the legal term is referred to as subject matter jurisdiction.

A court acquires subject matter jurisdiction over a lawsuit either by the constitution or a specific statute. A husband and wife cannot create subject matter jurisdiction by waiver, acquiescence or agreement. In a divorce case, Florida Statute 61.021, confers subject matter jurisdiction upon the court and requires that either the husband or wife must reside in Florida for 6 months before the filing of the divorce petition. This residency requirement is not only jurisdictional but must be proved in every case by the filing party either by a Florida drivers license, voter's registration card or even an affidavit of a corroborating witness.

In Mikulec v Mikulec, the husband filed a petition for writ of prohibition and alleged that the divorce court did not have subject matter jurisdiction since he was not a resident of Florida for six months prior to the filing of the petition. While the trial court denied his motion to dismiss for lack of subject matter jurisdiction, the order did not contain any findings as to where the husband resided before the wife filed the divorce action. In grating the writ of certiorari, the Fourth District Court of Appeal remanded the case to the trial court with instructions to make a specific finding that the husband has been a resident of the State of Florida for six months prior to the filing of the petition for dissolution of marriage.

In Sootin v. Sootin, the former husband and former wife divorced in Miami-Dade in 1998. The former husband was obliged to pay the former wife permanent alimony. During 2008, the former husband sought to modify or terminate his alimony obligation. The former wife successfully moved to dismiss the petition since she now resided in Tennessee.

Next, the former husband moved to Tennessee and filed a petition to register and modify the divorce decree previously entered in Miami-Dade. After the former wife moved to dismiss the petition for a lack of subject matter jurisdiction in Tennessee, the Miami-Dade court, after consultation with the Tennessee Court, transfered the case to Tennessee. The former wife appealed this order.

In reversing the trial court's transfer order, the Third District Court of Appeal held that the Miami divorce court erred in transferring the case to Tennessee. The court reasoned that Florida, under the Unified Interstate Family Support Act (hereinafter "UIFSA"), had continuing exclusive jurisdiction over the alimony order throughout the existence of the obligation.

Under UIFSA, a child support or alimony order issued in Florida can be registered in a foreign state for enforcement. However, the court of the foreign state is required to ask the court who issued the original order to consider either party's request for modification of the registered alimony or child support order in the issuing court that had original jurisdiction.