Residency Versus Jurisdiction Under Florida Law: Don’t Let it Confuse You

Residence is jurisdictional under Florida law. § 61.021, Fla. Stat. (2015); Fernandez v. Fernandez, 648 So.2d 712 (Fla. 1995). Section 61.021, Florida Statutes (2012), requires that only one of the parties to a marriage must reside six months in Florida prior to the filing of the petition. Orbe v. Orbe, 651 So.2d 1295 (Fla. 5th DCA 1995); Speigner v. Speigner, 621 So.2d 758 (Fla. 1st DCA 1993), remanded on other grounds, 644 So.2d 1035 (Fla. 1994). Specifically, Section 61.021, Florida Statutes (2015) states:

61.021. Residence requirements.—

            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.

            “Residence” for purposes of Section 61.021, Florida Statutes, means “an actual presence in Florida coupled with an intention at that time to make Florida the residence.” Gillman v. Gillman, 413 So.2d 412, 413 (Fla. 4th DCA 1982); accord, Jenkins v. Jenkins, 556 So.2d 441 (Fla. 4th DCA), review denied, 569 So.2d 1279 (Fla. 1990). For purposes of determining the statutory residency requirement in dissolution proceedings under Section 61.021, a wife’s residence does not necessarily follow that of her husband and must be determined based on the facts of each case. Copas, v. Copas, 687 So.2d 885 (Fla. 2d DCA 1997); Beaucamp v. Beaucamp, 508 So.2d 419 (Fla. 2d DCA 1987) (accord); Simpson v. Simpson, 339 So.2d 250 (Fla. 2d DCA 1976) (accord).

A continuous presence in this state is not required for the entire six-month period preceding the filing of a petition for a dissolution of marriage. Snyder v. McLeod, 971 So.2d 166, 169 n. 2 (Fla. 5th DCA 2007); Weber v. Weber, 929 So.2d 1165 (Fla. 2d DCA 2006); Jenkins v. Jenkins, 915 So.2d 1248, 1250 (Fla. 4th DCA 2005); Rowland v. Rowland, 868 So.2d 608 (Fla. 2d DCA 2004); Hunter v. Hunter, 736 So.2d 801 (Fla. 1st DCA 1999); Copas v. Copas, supra; Beaucamp v. Beaucamp, supra; see also, Eckel v. Eckel, 522 So.2d 1018 (Fla. 1st DCA 1988) (length of person’s absence outside Florida does not preclude satisfaction of six-month residency requirement for divorce); Sultan v. Sultan, 150 Fla. 266, 7 So.2d 108 (1942) (husband’s residence in Florida was sufficient to maintain divorce suit despite testimony that during a portion of time husband was working in another state).

Section 61.052(2), Florida Statutes (2015), provides that corroboration of testimony regarding the residence requirements of Section 61.021, Florida Statutes, may be by “a valid Florida driver’s license, a Florida voter’s registration card, a valid Florida identification card issued under s. 322.051, or the testimony or affidavit of a third party.” See also, Rowland v. Rowland, supra (affirming denial of motion to dismiss and concluding that wife’s testimony and production of wife’s Florida driver’s license provided competent, substantial evidence supporting trial court’s findings as to wife’s residency in Florida and court’s jurisdiction); Orbe v. Orbe, supra [holding that under § 61.052(2), a Florida driver’s license or Florida voter registration is corroborative evidence of residency].

An illustrative case on this point is Hunter v. Hunter, 736 So.2d 801 (Fla. 1st DCA 1999), wherein the court rejected the husband’s argument that the trial court in his dissolution action lacked subject-matter jurisdiction because his former wife was not a Florida resident for the six-month period prior to the filing of the dissolution petition. The court held:

            Although the evidence of the wife’s residency is conflicting, competent substantial evidence supports the trial court’s findings regarding the appellee’s residency. As noted in the order denying relief from the final judgment, the appellee “maintained corroborative evidence of her Florida residency in the form of a driver’s license and [Florida] voter registration [card].” Pursuant to section 61.052(2), Florida Statutes (1997), an allegation that a party satisfies the residency requirement of section 61.021 may be corroborated by a Florida driver’s license, voter registration card, or third party testimony.

736 So.2d at 801-02.

In a similar vein is Copas v. Copas, supra, wherein the court first recognized that continuous presence in the state is not required for the entire six-month period under Section 61.021, Florida Statutes. The court went on to state:

            In this case, the Wife testified that she had been a Florida resident since 1984 and intended to maintain Florida as her residence since that time although she spent summers in Tennessee. She last returned to Florida approximately five months before she filed the dissolution petition and the parties’ only child was born in Florida after her return. To corroborate her residency, the Wife produced a valid Florida driver’s license and voter’s registration card and testified that she maintained bank accounts, auto registration, and insurance in Florida. Residency is a mixed question of law and fact. . . . We conclude that the trial court erred in finding that the Wife did not establish the required period of residency because she offered sufficient evidence of her intent and physical presence.

687 So.2d at 887 (citation omitted).

As noted in one treatise, citizenship or immigration status does not determine residence:

            The test to be applied for residence… is to find the place the party “has made the chief seat of his household affairs or home interests.”Chisholm v. Chisholm, 98 Fla. 1196, 125 So. 694, 700 (1929). See Jenkins v. Jenkins, 915 So.2d 1248 (Fla. 4th DCA 2005). The intention to reside permanently in a given area, however, is often the determinative factor. See Copas v. Copas, 687 So.2d 885 (Fla. 2d DCA 1997) (wife resided in Florida although she spent summers in Tennessee).

            A person may be a legal resident of Florida without being a United States citizen. Residence, not citizenship, is the statutory prerequisite for obtaining subject matter jurisdiction. Nicolas v. Nicolas, 444 So.2d 1118 (Fla. 3d DCA 1984).For example, in Markofsky v. Markofsky, 384 So.2d 38 (Fla. 3d DCA 1980), a Canadian citizen met the six-month residence requirement. In Perez v. Perez, 164 So.2d 561 (Fla. 3d DCA 1964), a Cuban refugee could establish residency by intending to stay indefinitely in Florida even though he did not have authority under the immigration laws to remain permanently in the state. A spouse’s nonimmigrant status does not preclude him or her, as a matter of law, from establishing residency under F.S. 61.021.Weber v. Weber, 929 So.2d 1165 (Fla. 2d DCA 2006). The fact that a party’s immigration status may not allow him or her to remain in Florida also does not preclude the court from exercising jurisdiction over a dissolution of marriage because jurisdiction is based on Florida residence at the time the petition is filed. Hamilton v. Michieli, 954 So.2d 739 (Fla. 3d DCA 2007).

Amy R. Van Velzor, Florida Dissolution of Marriage §§ 3.12-3.13 (Florida Bar Continuing Legal Education 2012).

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