Posted on August 4, 2018

I Live In Chicago, Illinois But Spend The Winters In Florida. Where Do I File For Divorce?

Many successful people keep homes in Florida and Illinois.  When these people consider divorce in Florida or Illinois, they need to consider the strategic advantages and disadvantages of both jurisdictions.

I am uniquely qualified to answer this question as I am licensed in both Illinois and in Florida. I have an office in Chicago, IL and an office in Naples, Florida.

The option of where you wish to file is up to you.

If you wish to file for divorce in Chicago, Cook County, Illinois, there is very little law saying that you cannot. The statute doesn’t even have a requirement that you live in Illinois before filing.

“The court shall enter a judgment of dissolution of marriage when at the time the action was commenced one of the spouses was a resident of this State or was stationed in this State while a member of the armed services, and the residence or military presence had been maintained for 90 days next preceding the commencement of the action or the making of the finding” 750 ILCS 401(a)

You could file for divorce in Illinois and simply wait 90 days before entering the final judgment of dissolution. Also, you don’t even have to live in Illinois to file for divorce in Illinois if your spouse lives in Illinois.

There is even a case on the record where the parties fought over whether the case was to be heard Illinois or in Florida, Garrison v. Garrison 107 Ill. App.2d 311 (1969). While the case is almost 50 years old, the courts held that the jurisdiction of a divorce case depends on the intent of the party. Basically, if you believe you live in Illinois, you live there.

This concept of intent determines residency was reaffirmed when Rahm Emmanuel ran for mayor of Chicago after living in Washington, DC. The Illinois Supreme court held that Rahm Emmanuel was still a Chicago, Illinois resident because he had not abandoned his residency there (he has stuff in the basement of the house he was renting out). Abandonment, as well, was determined by intent.

So, basically, if you file first in Illinois and make almost any viable claim that your intent was to be a resident of Illinois your divorce will stay in Illinois.

Filing for divorce in Florida is a little more strict. “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.” Fla. Stat. 61.021

Florida defines that 6 months of residing as “an actual presence in Florida coupled with an intention at that time to make Florida the residence.” Jenkins v. Jenkins, 556 So.2d 441, 442 (Fla. 4th DCA 1990). But, Jenkins vs. Jenkins further elaborates that a continuous 6 months is not necessary if sufficient evidence exists of intent to have Florida be the party’s state of residence.

A Florida vacation home does not qualify a party to be a Florida resident. Florida residency cannot be established by “mere maintenance of a vacation or other temporary home in the state.” Gilman, 413 So.2d at 413. But, if you’ve been in Florida for over 6 months, it’s tough to label the home you’ve been staying in as a “vacation home”.

Once you know where you are eligible to file for divorce, you may realize that you can position yourself to file in either state with a few strategic moves.  If you want to know which is the better state to file for divorce, Illinois or Florida, please read this article.

Of course, before making the decision to file in Illinois or Florida you should carefully consider the two states’ different divorce laws and how they would apply to your case in particular.  Talk to a Chicago, Illinois lawyer who is licensed in both Illinois and Florida to get all the information you need. Upon deciding which court system would be more favorable to you, it would appear that you can file in Illinois any time and must establish a six month presence in Florida before filing in Florida.

To read this article in Spanish, click here.

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Russell Knight

Russell D. Knight has been practicing family law as a Chicago divorce lawyer since 2006. Russell D. Knight amicably resolves tough cases while remaining a strong advocate for his client’s interests.

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