What it means
Section 61.052 is Florida's no-fault divorce statute. It recognizes just two grounds: that the marriage is irretrievably broken, or the mental incapacity of one spouse. Nearly every case uses the first. The incapacity ground is narrow and slow: the spouse must have been adjudged incapacitated under s. 744.331 for at least the preceding 3 years, notice must go to a near blood relative or guardian of that spouse, and the court may appoint a guardian ad litem to protect them. In an incapacity divorce, the court may order the petitioner to pay alimony under s. 61.08.
- Divorce rests on one of two grounds: the marriage is irretrievably broken, or a spouse's mental incapacity.
- The incapacity ground requires an adjudication of incapacity under s. 744.331 lasting at least 3 years.
- Notice of an incapacity divorce must reach a near blood relative or guardian of the incapacitated spouse.
- In an incapacity divorce, the court may order the petitioner to pay alimony under s. 61.08.
How it plays out
This section reaches probate work mainly through timing and its overlap with incapacity. A divorce that is filed but not final when a spouse dies simply abates — the survivor is still a spouse for elective share and homestead, which surprises families mid-split. The incapacity ground is rare, and the three-year adjudication requirement is why: it is a deliberate, guarded path, not a shortcut. We flag it when guardianship and a troubled marriage collide, because the same s. 744.331 finding that supports a guardianship is the one this ground is built on.
Questions people ask
