We’d like to acknowledge the contribution of Margaret Nelson to Brandon Legal Group’s Legal Scholarship, an essay competition. While not the winner, the submitted essay certainly deserved publication in a public forum.
If you could change Florida Law regarding divorce and children, what would you change?
Florida is ranked the third-highest in the nation for divorce. The main reason for this statistic is that Florida suffers from a terrible financial hardship which ultimately induces stress and strain on marriages. Florida § 61.052- Dissolution of Marriage states no judgment shall be granted unless one of the following facts appears:
- The marriage is irretrievably broken
- Mental incapacity of one of the parties.
However, there are other important factors in this statute that I do not agree with. The court has the right to find that a marriage is not irretrievably broken and can further deny the petition for dissolution of marriage, regardless if the couple agrees or disagrees. In addition, a married couple cannot file for a legal separation before filing for divorce. I cannot say I agree with these stipulations. I believe if a couple decides to spend some time apart, legally, before filing for divorce, they should be allowed to make this decision amongst themselves without the courts getting involved.
A legal separation is a court order that mandates the rights and duties of a couple while they are still married but living apart. Legal separation is most helpful to a situation where the spouses work through any personal or financial issues affecting the marriage, which I’ve already stated, is the leading cause of divorce in the state of Florida. Often, time apart is more helpful than it is harmful. Married couples can take that time to reflect on their marriage and really focus on what needs to be fixed rather than just jumping straight to divorce and leaving the decision to the court as to whether or not the marriage is irretrievably broken.
When determining whether or not the marriage is irretrievably broken, I believe the courts shouldn’t be the ultimate deciding factor. For example, if a couple, who have been married for over 20 years, assuming there are no minor children involved, can no longer get along and have truly grown apart to the point where they can’t stand to be around each other, they should be allowed to decide what is best for their marriage. Instead of the court simply deciding yes or no, other options should be available to the couple to assist with possibly reconciling the marriage. The statute states only if minor children are involved, the option for counseling is available, however, I believe this option should be available across the board.
We all know in every aspect of the law; each judgment varies on a case by case bases. If it obvious to the court that a marriage is, in fact, irretrievably broken to the point where each party is capable to harming one other or their children, then judgment for the dissolution of marriage is justified. If not, married couples should be allowed to decide their marriage is fixable. Legal separation has the potential of being very effective with married couples who are contemplating divorce. Since Florida is ranked the third highest in divorce, I do believe that statistic will drop if Florida adopts legal separation from §61.052.
We encourage all legal students to apply for our legal essay scholarship competition. Winning comes with a no restriction cash award. See our scholarship page for details.