DEBORAH ANN MCCARTHY, APPELLANT,
v.
LESLIE MARION ALEXANDER, APPELLEE
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Deborah Ann McCarthy, a foreign service officer, appealed the dismissal of her petition for dissolution of marriage for lack of subject matter jurisdiction. The court affirmed the dismissal, holding that McCarthy failed to meet Florida's statutory six-month residency requirement for divorce, which requires actual physical presence in the state, not merely establishing domicile there.
McCarthy did not meet the statutory residency requirement because residency under Florida law requires actual presence in Florida coupled with an intention to make it one's residence, and domicile and residence are distinct concepts. Actual physical presence for six months immediately preceding the divorce filing is required, absent an applicable exception such as the military/government personnel exception.
[1] To obtain a dissolution of marriage in Florida, one party must reside in the state for six months immediately preceding the filing of the petition.
[2] Residency for the purpose of dissolution of marriage requires actual physical presence in Florida coupled with the intention to make Florida one's residence.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Residency under section 61.021 means 'an actual presence in Florida coupled with an intention at that time to make Florida the residence.'”
Establishes the legal standard for residency in divorce proceedings—actual physical presence is required, not merely intent or domicile.
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Join FLexlaw to unlock all legal intelligenceMcCarthy and her husband were both foreign service officers for the U.S. Government stationed outside Florida. Neither had been physically present in …
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BLUE, Acting Chief Judge.
Deborah Ann McCarthy appeals the dismissal of her petition for dissolution of marriage based on lack of subject matter jurisdiction. She argues that she has met the statutory residency requirement, even though she has not been physically present in Florida for six months. We conclude the trial court correctly ruled that McCarthy did not meet the residency requirements of the statute; we therefore affirm.
“To obtain a dissolution of marriage, one of the parties to the marriage must reside 6 months in the state before the filing of the petition.” § 61.021, Fla. Stat. (1997). Athough this requirement has been construed to mean that the party must reside for the six months immediately preceding the divorce filing, the courts have recognized an exception allowing military and government personnel to file for divorce “without proving their actual presence in the state during the six-month statutory period prior to the filing of their petitions of dissolution.” Eckel v. Eckel, 522 So. 2d 1018, 1020 (Fla. 1st DCA 1988). Under this exception, when a Florida resident was stationed outside the state by the government, that person did not lose their residency and could file for divorce even though he or she had not been physically present in the state for the immediately preceding six-month period.
McCarthy and her husband are foreign service officers for the U.S. Government. It is undisputed that neither one had been physically present in Florida for six months. The trial court found that neither party had spent more than a brief period of time in Florida. McCarthy argues, however, that domicile and residence are the same and that she has acquired residency in Florida. because, among other things: she has declared Florida as her domicile; she has a Florida driver’s license; she is registered to vote in Florida; she has a Florida checking account; and she has paid intangible taxes in Florida. We agree that McCarthy has established Florida as her domicile, but we reject the argument that domicile and residence are the same.
“Residency under section 61.021 means ‘an actual presence in Florida coupled with an intention at that time to make Florida the residence.’ ” Copas v. Copas, 687 So. 2d 885, 887 (Fla. 2d DCA 1997) (quoting Jenkins v. Jenkins, 556 So. 2d 441, 442 (Fla. 4th DCA 1990)). “Perhaps the clearest way to point out this technical distinction [between domicile and residence] is by the proof required to establish each item. The domicile involves the intent of an individual. The residence is a matter of objective fact.” Brown v. Brown, 123 So. 2d 382, 383 (Fla. 2d DCA 1960). While McCarthy may have intended to make Florida her domicile and residence, she was never actually present in Florida for six months. Therefore, she failed to meet the statutory residency requirement for filing a petition for dissolution of marriage. The trial court correctly dismissed the petition.
We are not unsympathetic to McCarthy’s claim that she has been left with no jurisdiction in which to dissolve her marriage. Even if we accept this claim as true, we are unable to create an exception to the statutory requirement of residency necessary to confer jurisdiction on the courts of this state. Accordingly, we affirm.
Affirmed.
FULMER and WHATLEY, JJ„ Concur.
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Snyder v. McLEOD, 971 So. 2d 166 (Fla. 5th DCA 2007)…n Florida. The analysis in dissolution cases is therefore instructive. Under section 61.021, Florida residency is defined as “an actual presence in Florida coupled with an intention at that time to make Florida the residence.” McCarthy v. Alexander, 786 So. 2d 1284, 1285-86 (Fla. 2d DCA 2001) (quoting Jenkins v. Jenkins, 556 So. 2d 441, 442 (Fla. 4th DCA 1990)). Thus, temporarily residing in Florida without a present intention to make Florida one’s legal residence is not sufficient to establish Florida residen…
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Weiler v. Alexandria G. Weiler, 861 So. 2d 472 (Fla. 5th DCA 2003)…a resident of this state preceding the commencement of the action whether cohabiting or not. There is a difference between the terms “domicile” (sometimes referred to as legal, permanent or primary residence) and “residence.” McCarthy v. Alexander, 786 So. 2d 1284 (Fla. 2d DCA 2001). Domicile involves the intent of an individual to make Florida his or her legal residence. McCarthy. It is the place where an individual has a true, fixed and permanent home, to which he intends to return whenever he is absent. Se…
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Reinhard Lauterbach v. Lauterbach (Fla. 2d DCA 2020)…arted the state. This and other courts of this state have consistently held that "[r]esidency under section 61.021 means 'an actual presence in Florida coupled with an intention at that time to make Florida the residence.' " McCarthy v. Alexander, 786 So. 2d 1284, 1285 (Fla. 2d DCA 2001) (emphasis added) (quoting Copas v. Copas, 687 So. 2d 885, 887 (Fla. 2d DCA 1997)); see, e.g., Jenkins v. Jenkins, 915 So. 2d 1248, 1250 (Fla. 4th DCA 2005) (acknowledging that residency requires "actual presence" and conclud…
Authorities Cited
- Eckel v. Eckel, 522 So. 2d 1018 (Fla. 1st DCA 1988)
- Carter Todd Peyton Jenkins v. Jenkins, 556 So. 2d 441 (Fla. 4th DCA 1990)
- Brown v. Brown, 123 So. 2d 382 (Fla. 2d DCA 1960)
- Copas v. Copas, 687 So. 2d 885 (Fla. 2d DCA 1997)