The Motion to Dismiss in Florida Family Law

By Mary Jane Freeman

Just because you file for a divorce doesn't mean that you have to go through with it. If you and your spouse decide to give it one more try, Florida allows you to dismiss your divorce petition by filing a motion. However, if the court grants your motion, you will not receive any of your court fees back and will have to file a brand new divorce petition if you later change your mind.

Filing for Divorce

If either you or your spouse has resided in Florida for at least six months, you may file for divorce in the state. In your petition, you inform the court of everything you want from the divorce such as the family home and custody of your children. If you and your spouse agree on all marital issues and don't have any children together, you can file a joint petition for divorce, known in Florida as a simplified divorce. However, if you have children or you don't agree on all marital issues, you have to file for a general divorce instead and provide copies of the petition and other related paperwork to your spouse who must submit an answer within 20 days. Regardless of whether you file alone for a general divorce or jointly with your spouse for a simplified divorce, the court will schedule a hearing on the matter.

Dismissal by the Court

If you file for a simplified divorce with your spouse, both of you must attend a hearing to finalize the divorce. If one or both of you fail to appear, the court can dismiss the case altogether. If this happens, you lose all court fees you paid and will have to start over from scratch if you still want a divorce. If you filed for a general divorce and your spouse fails to file an answer to the divorce petition or attend the hearing, the divorce will proceed without him. However, if you also fail to attend the hearing, you run the risk of the court dismissing the divorce action.

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Dismissal by the Parties

If you and your spouse decide to reconcile, you can withdraw the divorce petition. To do this, you must file a motion to dismiss with the court. If you filed for a simplified divorce, both you and your spouse must sign and file this motion. If you filed for a general divorce, only one of you is required to file the dismissal motion. The court will schedule a hearing on the motion and if granted, the divorce proceeding will be dismissed. However, if your spouse appears and informs the court that he still wants a divorce, the motion to dismiss won't be granted, and the divorce proceeding will continue.

Other Dismissal Reasons

The court may take it upon itself to dismiss your divorce case even if you have not requested it. Reasons may include failure to file the appropriate paperwork or not meeting one or the state's legal requirements such as being a resident for six months or more.

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