Can I Still Get a Divorce if My Spouse Does Not Show Up at the General Magistrate Hearing?
By Wayne Thomas
Hemera Technologies/AbleStock.com/Getty Images
Participation of both spouses can help ensure the divorce process moves forward efficiently. Unlike other states, divorce hearings in Florida are often conducted by general magistrates and not judges. However, one spouse cannot prevent a marriage from being dissolved by the act of simply not attending a general magistrate hearing. Instead, depending on how the case was filed, the magistrate will either request the filing of a new petition or recommend to the presiding judge that a divorce is granted based solely on the testimony of the participating spouse.
Overview of Magistrates
In Florida, general magistrates are used to take some of the workload off of judges. The magistrate is an attorney appointed by the court to conduct a divorce hearing. After hearing all of the evidence, the magistrate issues a report to the presiding judge with specific findings of fact and recommendations on how the judge should rule. The judge will then review the report and issue a court order incorporating the findings made by the magistrate.
If a spouse fails to respond after receiving notice of a divorce action, the other spouse may request a divorce by default in Florida. A default means that your spouse waived his right to participate in the divorce by not responding in time. A default generally allows you to schedule an earlier hearing with the magistrate than if your spouse had responded to your petition. To qualify, you must first serve the divorce paperwork on the other party through the sheriff's office and wait 20 days for a written response. If your spouse does not respond in time, you may then file a motion for default and a default judgment form with the court. After the court enters the default, you will be asked to schedule a final hearing with the magistrate. At the hearing, the magistrate will hear only your side of the story and forward her findings to a judge for issuance of the final divorce decree.
In Florida, if the divorce was filed as an uncontested divorce, only the filing spouse is required to attend the hearing. An uncontested divorce means the parties are in agreement on every aspect of the divorce, which requires the other spouse to file an answer to the petition in addition to the marital settlement agreement submitted on behalf of both spouses. The marital settlement agreement is a binding contract that establishes to the court that the parties have come to voluntary agreement on all issues related to the divorce, such as property division and support.
If the matter was filed as a simplified divorce, both spouses must attend the hearing. A simplified divorce is a faster type of uncontested divorce for couples without children who are willing to waive their rights to spousal support and a trial. A simplified divorce does not require a marital settlement agreement, so attendance at the final hearing is mandatory to ensure both parties understand their rights and obligations. If your spouse fails to show up, the court will not grant you a divorce and you must start the process over by filing a regular petition for divorce.
If your spouse has filed a response to the petition but the two of you cannot reach an agreement, the divorce must proceed as contested. Your spouse's participation at the final hearing is considered mandatory, but if he refuses to attend, his absence will not prevent the court from issuing a divorce decree based on your testimony. Because this decision could result in a ruling unfavorable to the absent spouse, the court will usually grant him a continuance if he provides a legitimate reason for his absence in a timely manner. For example, if your spouse was involved in a car accident on the way to the hearing, after informing the court as soon as possible, this reason is likely to be considered grounds for postponement.
- Florida State Courts: Instructions for Florida Supreme Court Approved Family Law Forms 12.922(a), Motion for Default, and 12.922(b), Default
- Florida Legislature: 2012 Florida Statutes, Section 48.021
- Clerk of the Court, Brevard County, Florida: Divorce FAQ's
- Givens Divorce Law Group: What Is a Marital Settlement Agreement in a Florida Divorce?
- Clerk of the Courts, Polk County, Florida: Simplified Divorce FAQ
- Eighteenth Judicial Circuit, Seminole County, Civil/Family Division: Administrative Policies and Procedures Guidelines
- Law Office of Adam B. Cordover: What is a General Magistrate?
- Florida Panhandle On-Line: Florida Family Law Rules: Rule 12.490
- The Free Dictionary: Default
Wayne Thomas earned his J.D. from Penn State University and has been practicing law since 2008. He has experience writing about environmental topics, music and health, as well as legal issues. Since 2011, Thomas has also served as a contributing editor for the "Vermont Environmental Monitor."