Types of Pleadings in an Action for Dissolution
In Florida divorce cases, there are generally four types of pleadings in an action for dissolution: a petition, an answer, a counterpetition, and an answer to a counterpetition. A petition is a formal statement of the petitioner’s cause of action against the respondent. The petition serves the following functions: sets forth the grounds of the court’s jurisdiction; recites facts that give rise to the cause of action ; and requests that the court take judicial action.
Filing a petition commences an action for dissolution . In the answer, the respondent states his or her defenses to the claims asserted in the petition. The respondent must either admit or deny each of the petitioner’s allegations . A respondent’s statement that he or she lacks knowledge regarding an allegation operates as a denial of that allegation. If the respondent fails to either admit or deny an allegation, the allegation is deemed to be admitted. If a respondent admits the truth of an allegation, he or she may nonetheless assert an affirmative defense to the allegation as a bar to recovery.
A counterpetition, or counterclaim, is a claim for relief asserted by a respondent against the initial petitioner. It is not an independent pleading, but is contained in the respondent’s answer
Petition For Dissolution Of Marriage-Caption
IN THE CIRCUIT COURT OF THE JUDICIAL CIRCUIT IN AND FOR COUNTY, FLORIDA IN RE: THE MARRIAGE OF name Wife or Husband,
and [name], Wife or Husband, NO. PETITION FOR DISSOLUTION OF MARRIAGE
Statement of Jurisdiction
A petition must recite the grounds upon which the court’s jurisdiction is based. The jurisdictional allegations must demonstrate that the court has subject matter jurisdiction over the action and jurisdiction over either the parties or the property in issue.
A court has subject matter jurisdiction in an action for dissolution if either party has resided within Florida for the six months immediately prior to filing the petition. A petition for dissolution must therefore include an allegation that one of the parties has resided in Florida for the six months prior to filing the petition.
Name of party] has been a resident of Florida for more than six months next before filing this petition.
The parties were married to each other on [date] at [place] and have cohabited together as husband and wife until on or about [date]. The parties are no longer living together as husband and wife.
If service of process must be completed on a party who is not a resident of Florida, the pleading should set forth facts that demonstrate that the court has personal jurisdiction under the long-arm jurisdiction statute. Either of the following forms could be used to allege grounds for long-arm jurisdiction:
The [name of opposing party], although temporarily residing outside of Florida, maintained at the time of the filing of this action a matrimonial domicile located in County, Florida, at the following street address.
Although not presently a resident of Florida, the [name of opposing party] resided in Florida prior to the commencement of this action.
If a petition recites more than one cause of action, the jurisdictional basis of each claim must be separately alleged if their jurisdictional requirements differ. For example, the grounds for assuming subject matter jurisdiction over a claim brought under the Uniform Child Custody Jurisdiction Act (UCCJA) differ from the grounds for assuming jurisdiction over an action for dissolution. Therefore, if a petitioner in an action for dissolution requests determination of any issue concerning shared parental responsibility or visitation, he or she must set forth allegations with respect to UCCJA jurisdictional requirements either in the petition or in a separate affidavit attached to it. Similarly, if a claim for partition is brought in conjunction with a dissolution of marriage action, the petition should establish that the court has in rem jurisdiction over the property, and should therefore allege that the property is in the county where the action has been brought.
Allegations to Support Claims in Petition or Counterpetition
Existence of Marriage
In an action for dissolution, the petitioner must allege the existence of a legally valid marriage, because there can be no judgment dissolving a marriage in the absence of proof that a marriage exists. The allegation of a legally valid marriage is also a necessary prerequisite for an award of temporary alimony, permanent alimony, or equitable distribution. A legally valid marriage may be created in Florida either through a ceremony or, if the marriage was entered into prior to 1968, by operation of the common law.
A valid ceremonial marriage occurs if the parties obtain a marriage license and, in the presence of witnesses, participate in a marriage rite conducted by a member of the clergy or a duly empowered civil official. If the marriage was created by ceremony, the petition for dissolution should specify the date on which the ceremony took place.
A marriage may be dissolved either because it is irretrievably broken or because one of the parties is mentally incapacitated. The petitioner need only plead and prove one of these grounds in a dissolution proceeding.
A marriage is considered irretrievably broken if the parties no longer possess the common intent to live together as husband and wife. If an action is based on this ground, the petition should simply allege that the marriage is irretrievably broken. The petition should not state the specific facts that support the allegation, so as not to limit the evidence that may be presented to prove the ultimate fact that the break is irretrievable.
Alimony is the award of money from one spouse to the other to provide for the recipient’s support. Alimony may be paid as temporary support while the dissolution action is pending, or may be awarded as part of the final judgment of dissolution, either as a lump sum or periodic payments . Alimony is further characterized as temporary, permanent, or rehabilitative, .
A claim for alimony should be made in an initial petition or in a counterpetition. The pleading must allege that the party requesting alimony has a need for support and that the opposing party has the ability to pay. The pleading should merely request alimony in general, so as not to limit the type of alimony that the court may award. Alternatively, specific facts that support an award of each type of alimony may be pleaded if desired. The pleading should not request a specific amount of alimony, since such a request limits the amount of alimony that the court may award.
Petitioner or Counterpetitioner] is dependent on Respondent for support. Respondent has the ability to support [Petitioner or Counterpetitioner].
A claim for equitable distribution of the parties’ marital property should be clearly and specifically designated as such. It should commence with an allegation that the parties have acquired property during their marriage both jointly and in their individual names, and that the property should be equitably distributed.
The parties have acquired a substantial amount of property during the course of their marriage, both jointly and in their individual names, as a result of marital earnings. The property should be equitably distributed between the parties.
The parties have acquired certain assets and property during the course of their marriage, including but not limited to [specify, e.g., (Petitioner’s or Counterpetitioner’s) or (Respondent’s or Counterrespondent’s) business; stock acquired in (Petitioner’s or Counterpetitioner’s) or (Respondent’s or Counterrespondent’s) name; the marital home, individual pension and profit-sharing plans of both parties, IRA accounts of both parties, and jointly and individually held real estate]. Both parties have contributed to this property during the marriage through efforts in the marketplace as well as through efforts in the home. All of this marital property should be equitably distributed between the parties; equitable distribution can be accomplished without substantially endangering either party’s economic status.
A party may request that the court partition property that is jointly owned by the parties. An action for partition is a proceeding brought by coowners of real or personal property for the purpose of dividing the property according to their proportionate interests in it. Although actions for partition commonly concern real property, partition may also be sought as a means to distribute jointly owned personal property.
Property may either be partitioned in kind or partitioned by sale. When property is partitioned in kind, the court gives each party title to a specified share of the property. If the property cannot be divided without detrimentally affecting the interests of the owners, the court will partition the property by ordering the sale of the property and a proportional distribution of the proceeds to the owners.
An action or claim for partition must be specifically pleaded in a separate count. The pleading must expressly request that the court partition the property in issue, and must allege the elements of a cause of action for partition.
Security for Payment of Alimony
A claim for permanent periodic alimony may include a supplementary request that the court order the payor to maintain a life insurance policy designating the requesting party as beneficiary. The purpose of maintaining such a policy is to ensure that alimony payments are paid to the requesting party after the payor’s death. If a party requests an order securing the payment of alimony, the pleading may include allegations of special circumstances establishing a need for such an order. For example, the pleading may allege that the requesting party is in ill health and unemployable, and would suffer serious financial hardship if the other spouse predeceased him or her
Respondent or Counterrespondent] currently has a life insurance policy of substantial value insuring [his or her] life. [Respondent or Counterrespondent] should maintain _[Petitioner or Counterpetitioner] as full or partial beneficiary in the specified amount of that coverage as security for the award of alimony.
[Petitioner or Counterpetitioner] is in ill health and is unable to obtain employment. If [Respondent or Counterrespondent] predeceases [Petitioner or Counterpetitioner],[Petitioner or Counterpetitioner] will have no means of support. [Respondent or Counterrespondent] should be required to purchase and maintain a policy of life insurance on [her or his] life for the face value of not less than $ as security for payment of alimony.
Payment of Indebtedness
In an action for dissolution, the court must determine each party’s responsibility for repaying debts incurred during the marriage. The pleadings may recite that the parties incurred certain debts during their marriage and that the court should resolve which party is responsible for the repayment of each debt.
If a party repaid specific debts after the parties separated, his or her pleading may state that certain debts have been repaid and that on proof at trial the court should credit the amount of repayment against any property award for which the payor is responsible.
The parties have incurred certain debts during the course of their marriage, the responsibility for which the court should adjudicate. [Respondent or Counterrespondent] is better able to pay these debts than is [Petitioner or Counterpetitioner].
If the parties to a dissolution action have one or more minor children, the court must make a decision with respect to parental responsibility for the children. The pleading must allege the grounds of the court’s jurisdiction to make a parental responsibility determination. To invoke the jurisdiction of the court, a party must allege one of the following:
- Florida is the child’s home state.
- Florida was the child’s home state within six months before the commencement of the proceeding, a parent or a person who acts as a parent continues to reside in Florida, and the child was removed from Florida by another person who claims custody.
- Assumption of jurisdiction is in the child’s best interest because the child and at least one parent have a significant connection with Florida and substantial evidence with regard to the child’s care, protection, training, and personal relationships is available in Florida.
- Assumption of jurisdiction is in the child’s best interest either because no other state would have jurisdiction under the Uniform Child Custody Jurisdiction Act or because another state has declined to exercise jurisdiction on the ground that Florida is the more appropriate forum.
Each pleading, or an affidavit attached to the pleading, must also include the following jurisdictional information required by the Uniform Child Custody Jurisdiction Act:
- The child’s present address.
- The locations where the child has lived for the five years prior to filing.
- The names and present addresses of the persons with whom the child lived for the five years prior to filing.
- A statement as to whether the party has participated as a party, witness, or in another capacity in any other litigation concerning the custody of the child in Florida or elsewhere.
- A statement as to whether the party has information of any other in-state or out-of-state custody proceeding regarding the child.
- A statement as to whether the party knows of any person who is not a party to the proceedings who has physical custody of the child or who claims to have custody or visitation rights with regard to the child.
Shared Parental Responsibility
The court must award shared parental responsibility unless it finds that to do so would be detrimental to the child. Shared parental responsibility is a court-ordered relationship whereby both parents retain full parental rights and responsibilities with respect to their child. If shared parental responsibility is sought, the pleadings need only allege that the parties have a minor child or children. Additional allegations that indicate that the parties desire shared parental responsibility are not necessary.
Under recently enacted legislation, the parties must enter into a parenting plan that provides for time sharing and a schedule for the parties and their child(ren). The terms custody and visitation are no longer used under current Florida Law.
Child support is a parent’s periodic payment for the care and support of a minor child. Rather than request a specific amount of child support payments, a pleading should state only whether the parties are able to pay support.
Security for Future Payment
A pleading for child support may request that a prospective payor maintain an insurance policy on his or her life, naming the minor child as the beneficiary. The pleading may request that the court order a policy in an amount that will guarantee support payments in the event of the payor’s death.
Special Property Concerns
Exclusive Occupancy of Marital Home
A party may request that the court grant him or her exclusive occupancy of the marital home for a period of time. If one party is granted exclusive occupancy of the marital home, the other party is unable to presently retrieve his or her equity in the property by selling it . Exclusive occupancy may be awarded as a form of either child support.
[Petitioner or Counterpetitioner] requires the exclusive use of the home and its contents for [himself or herself] and the minor children of the parties as part of [his or her child support obligation, until the [Petitioner or Counterpetitioner] remarries or the children reach majority. [Respondent or Counterrespondent] has the financial ability to provide the property until such time.