Every Branch of Government Takes an Interest in Your Divorce
Whether government is involved in marriage, every branch is involved in divorce.
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Associate Regional Editor Sherri Lonon recently wrote an article that was probably published in your city titled “Obama Endorses Gay Marriage, Do You?” This is obviously a hot topic and the number of comments justify this conclusion. In August 2011, I wrote an article titled “Same-Sex Marriage: Where Florida Law Stands” for Patch.com. This election may render my analysis outdated depending on who wins the next election. Obama’s position became clear recently. What was his position when he was running for the Illinois Senate seat?
As I was reading through comments to Sherri Lonon’s article, one stuck out. The New Port Richey commenter stated, “Like MAAAANY areas, how about we get the Govt out of the marriage business??” I started to think about this question from the perspective of when a marriage is ending. It struck me that the Legislative, Executive, and Judicial branches of government are intimately involved in a divorce more than I had previously reflected on.
The fundamental point of this article is not political. It is actually to describe how Florida public policy has created a divorce body of law that includes all branches of government. Your neighbor influences the dynamics of the ever-changing divorce law by his or her vote. Your Governor influences the way that the Executive branch is involved. The election of your local judges determines who will be deciding your case. Your Florida Supreme Court decides the procedures that you must follow to navigate the divorce process.
If you have been through a divorce, of course you know that a judge will ultimately have to enter a Final Judgment dissolving your marriage. This could be as a result of a trial or a stipulation. But how did the judge get the authority to distribute your property, order alimony, award child support, and determine time-sharing?
First, the Legislature writes the laws. The dissolution of marriage statute is located in Chapter 61. There is an additional domestic relations statute located in Title XLIII. In my experience, any major changes in Florida’s public policy related to marriage and divorce start with your elected officials in Tallahassee.
The Judicial branch then applies the laws to the specific cases before them. More importantly, the Judicial branch also writes the Florida Family Law Rules of Procedure that apply to your divorce. The most basic definition of the purpose of the rules of procedure is that they instruct the parties on how to navigate the court system. They are the instruction manual on how to accomplish certain goals. I will suggest that most unrepresented parties are very good at finding the legislative statutes, but they fail to consider the rules of procedure. The bread and butter of a quality family law attorney is a mastery of both the law and the procedure.
Along with the rules of procedure, the Judicial branch approves certain family law forms to provide a framework for what needs to be included to accomplish a goal. If you want to start the divorce, there is a form for that. Since you are required to disclose your finances, there is a form for that too. If you agree to the terms of your divorce with your spouse, there are (multiple) forms for that as well. The Family Law Section of the Florida Bar is very involved in the process of writing the rules of procedure and forms that are ultimately approved by the Florida Supreme Court.
The Executive branch gets involved in divorces usually (but not exclusively) in child support issues. Parties receiving child support have the right to have the paying party pay child support to the Child Support Services through the Florida Department of Revenue. The Department of Revenue will also appear in a court case on behalf of a party entitled to support. This is especially true when the party that is supposed to receive assistance receives other government benefits such as “Title IV-D” cases.
From a practical perspective, if you file for divorce, you will be assigned to a specific judge in a specific division in a specific courthouse in a specific county. However, you, your spouse, and the trial judge are influenced and bound by laws, rules, procedures, policies, and intervention by every single branch of our government.
Whether the government should stay out of the business of “marriage” is an interesting question. I will only suggest that a legal marriage is a contract between the parties AND the State of Florida because marriage bestows very special and unique legal rights on the spouses. However, the government at every level is completely involved in the dissolution of the marriage. If you thought divorce was a big deal before, perhaps now you recognize that it is a big deal the entire State cares about.