Burden of Proof in a Florida Divorce

The General Rule: Preponderance

The burden of proof in a Florida family law case, including divorce, is preponderance of the evidence. Straughter (1956) (preponderance standard applied to divorce); Perry (1957) (same); Lauray (1966) (same); Rosborough (1968) (preponderance standard applied to residency requirement for divorce); and Heim (1998) (sustaining the trial court’s application of the preponderance standard stating, “We are reluctant to complicate the job of a trial court and require different quanta of proof for different [sub]issues in Chapter 61 proceedings.”)

The preponderance standard is defined as “the greater weight of the evidence, or evidence that ‘more likely than not’ tends to prove a certain proposition.” Gross (2000); Rollins (2022). Commonly, the burden is described as “just greater than 50%.” The burden is not satisfied where there is conflicting he said/she said testimony and no finding that one party was more credible than other). Rollins (2022).

Exceptions

There are exceptions to the general applicability of the preponderance standard of proof in family law cases based on the type of case and issue in dispute.

A termination of parental rights case must be proven by “clear and convincing evidence” due to interference with a parent’s constitutional rights. F.S. 39.802 (4)(a), (4)(c); Padgett (1991). Clear and convincing evidence is defined as an intermediate level of proof that entails both a qualitative and quantitative standard. The evidence must be credible; the memories of the witnesses must be clear and without confusion; and the sum total of the evidence must be of sufficient weight to convince the trier of fact without hesitancy. In re Davey (1994); Larkin (2023). This standard falls between “preponderance” and “beyond reasonable doubt” on the evidentiary spectrum. [1]

Temporary restraining orders (such as for domestic violence or stalking injunctions) require “strong and clear” evidence. Kopelovich (2001). This uncommon evidentiary standard falls somewhere between “preponderance” and “clear and convincing” evidence on the evidentiary spectrum. The Florida Supreme Court elaborated that this standard requires the trial judge to consider “all possible responses a [respondent] could raise if present.” Beeler (1988). The burden of proof returns to “preponderance” at the subsequent evidentiary hearing on the temporary order. Rollins (2022).

Shelter petitions in dependency cases are subject to the “probable cause” evidentiary standard, the same standard as for an arrest warrant. Fla. R. Juv. Pr. Rule 8.305(b)(2), (3). “Probable cause” is defined as “a reasonable ground for suspicion, or knowledge of facts and circumstances which would warrant an individual of reasonable caution in believing that an offense had been committed.” Spano (1983). This lenient evidentiary standard falls somewhere between “reasonable suspicion” and “preponderance” on the evidentiary spectrum. [2]

Rebuttable Presumptions Shift Burdens

Generally, a party seeking relief has the burden to establish entitlement to that relief. Berg (2002). Applicable law sometimes imposes a rebuttable presumption that re-assigns the burden of proof or the level of required proof. F.S. 90.301 et seq. For example, F.S. 61.13(3) includes a statutory presumption that equal timesharing is in a child’s best interest. However, a party may rebut this presumption by proving by a preponderance of evidence that equal time-sharing is not in the child’s best interest. Other examples include a rebuttable presumption against relocation [F.S. 61.13001(8)]; a rebuttable presumption that shared parental responsibility is not the child’s best interest if a parent has been convicted of domestic violence [F.S. 61.13(2)(c)(2)]; and a rebuttable presumption that jointly titled property is marital [F.S. 61.075]. Those are just a few; there are many more rebuttable presumptions in Florida family law.

Know the Playing Field

A party seeking judicial relief must prove their entitlement to that relief. Be sure you know the burden of proof that applies to each of the material issues in your case. Failure to meet the level of proof required, including failure to rebut applicable statutory presumptions, could cause the court to deny the relief you are seeking.

Endnotes

[1] Proof “beyond reasonable doubt” requires an abiding conviction of guilt that does not waver or vacillate. “Reasonable doubt” does not include a mere possible doubt, speculative, imaginary or forced doubt. Fla. Standard Jury Instruction §3.7; Ramirez (2024).

[2] “Reasonable suspicion” is a well-founded, articulable suspicion that a person has committed, is committing, or is about to commit an offense. F.S. 901.151; Popple (1993). Still, a mere “hunch” is insufficient to support reasonable suspicion. McCloud (1986).

Michael DeVoe is a divorce attorney in Orlando, Florida practicing contested divorce, uncontested divorce, timesharing, visitation, custody, paternity, child support, injunctions, and other family law cases.