What is a Legal Separation in Florida?
Legal separation is the process by which a married couple obtains the legal protections afforded through a divorce without actually terminating the marriage. While citizens of the United States are generally free to enter into contractual arrangements as they see fit, in Florida marital separation is not recognized and contracting parties must divorce to legally separate. Because Florida law does not recognize legal separation, community property laws do not apply in the same way they would in jurisdictions where legal separation is recognized. These factors can often lead to issues in obtaining child custody orders, as well as shared and separate property orders . Fortunately for those seeking to obtain some of the protections and benefits enjoyed by divorcing couples, Florida makes it possible for separated parties to obtain "informal" separation agreements that will satisfy the legal requirements that would be required with an actual divorce. For example, separation agreements can include provisions dealing with spousal maintenance, child support, child custody and visitation rights, and property division. Such provisions may offer the same benefits as a divorce, as long as the parties continue to be married. It is important to note that informal separation agreements do not carry the same weight as divorce decrees, and cannot be used to terminate a common law marriage. Rather than seeking to replace divorce, such agreements are to be used by those simply seeking to arrange their lives as amicably as possible while ensuring adequate support for all parties involved.
The Pros and Cons of Legal Separation
Choosing legal separation rather than divorce can be right for some Florida couples but not for others. The following are some clear benefits and downsides to separating rather than divorcing:
• While legal separation does allow you to avoid many of the issues associated with divorce, it can provide less protection regarding assets and liabilities than might be available in a divorce. For example, the obligation to make mortgage payments and pay taxes generally continues during the legal separation, so one spouse could incur financial responsibility for the other’s debts.
• Legal separation could be a good choice when the couple needs time apart to deal with issues such as financial difficulties, addictions or infidelity, but neither spouse wants to get divorced. It can also benefit spouses seriously injured who need continued medical insurance through their spouse or who are otherwise ineligible for divorce.
• Usually, a legal separation agreement is simpler, easier and cheaper to negotiate, particularly if the spouses remain open to a reconciliation. In fact, some people do just that and reconcile with their partner after having separated for some time.
• Because a legal separation is not a divorce, the financial, social and psychological implications of remaining married still apply. For example, it is impossible for one spouse to marry someone else until the court grants the divorce, even if the couple is no longer together.
• On the other hand, if you need time apart to work through issues or would not benefit from a divorce for other reasons, a legal separation might be ideal.
How to Obtain a Legal Separation in Florida
In Florida, the steps for achieving a legal separation follow the same process as pursuing formal divorce or dissolution of marriage. Most individuals separating from their spouse in Florida will seek to dissolve their marriage rather than formally become legally separated. The court process involved in both circumstances is the same, and both circumstances involve the same issues such as equitable distribution of marital assets and liabilities, issues involving spousal support or alimony, and shared parental responsibilities and timesharing involving any minor children born of the marriage.
When two spouses separate, they can enter into a voluntary agreement addressing the issues discussed above. This separation agreement will dictate how the parties will divide property and liabilities, whether there will be any distribution of a dependent’s dependency exemption, the parenting plan for any minor children, and if spousal support will be paid. Oftentimes, when one party moves out of the marital home, it becomes difficult if not impossible to communicate with the former spouse in a productive manner. Having the terms of the parties’ separation in a separation agreement will protect both spouses from future problems. The documents used for a separation agreement are the marital settlement agreement and parenting plan. After the parties execute the marital settlement agreement and parenting plan, the separate agreement must be enforced like a contract. If your former spouse fails to comply with the terms of the agreement, you may file an enforcement action in court to enforce the terms of the separation agreement.
Q: How can I separate from my spouse without getting a divorce?
A: Since Florida does not recognize legal separation, the only way to "legally" separate without divorcing your spouse is to enter into a separation agreement discussing support and the other issues related to the parties’ marriage. A couple that separates in this way will most likely later seek to formally dissolve their marriage or commence a family law action against the other spouse seeking equitable distribution of assets and liabilities, spousal support or alimony, and shared parental responsibility regarding their children separately. Once a divorce is filed, the Court will either enter a temporary order setting custody and support provisions, or set the case for trial to fully settle all of the issues.
Legal Separation Alternatives
While a legal separation is an option for some Floridians, it may not be the best choice for everyone. In Florida, there are several alternatives to consider, depending on one’s circumstances. A traditional divorce is the first option that many will consider. A divorce essentially requires the parties to end their marriage in a legal sense, dividing assets and liability and taking care of any other issues that need to be addressed. Florida has a "no-fault" divorce law, meaning that no party has to assign blame or prove wrongdoing on the part of the other party in order to proceed. A divorce decree is generally accompanied by a court date, and it is fine to file for divorce without being legally separated first.
Informal separation is another option that many people choose when they realize that their marriage is not working out but they are not yet ready to proceed with legal separation or divorce. If the parties to a marriage both agree, they can set the terms of their separation on their own as long as they both follow them. It is important, however, that parties consider legal separation if children are involved, as informal agreements do not have the benefit of the law behind them to enforce them if one party chooses to break the agreement.
Finally, parties may not choose either of these formal approaches, instead, opting for counseling and other options in a bid to save the marriage. The decision to officially separate and live separately is not always an easy one. For some couples, trial separation may not be the answer, and instead, they may choose to begin seeing a counselor in hopes of salvaging the marriage. Before making the decision to separate or divorce at all, parties should agree to take some time to investigate the options available to them. Separation can be a stressful process, but an informed decision can help lessen some of the stress.
Legal Separation Requirements and Considerations
While legal separation is not a concept that exists under Florida law, simply because the state does not acknowledge legal separation does not mean that the process does not exist. It is important to note that this does not mean that there are no requirements for how you and your spouse choose to make the change from living together as a married couple to living apart. Indeed, there are specific requirements that you need to meet in order to obtain a divorce.
If you want to live separately from your spouse and you believe that you will be unable to reconcile, then divorce may be a better option than waiting for a legal separation to take place. However, if you and your spouse agree on all terms for your separation and are committed to working together to live peacefully apart, then reaching an agreement still may be the better option.
— 1. Division of Assets and Liabilities: In Florida, debts and assets are subject to equitable distribution, which is the division of property. Both debts and assets are separate, meaning that they are viewed as distinct from each other. There are two types of property in Florida: marital property and nonmarital property. Nonmarital property is anything retained by one spouse during the marriage that was not a gift, bequest or devise. Marital property, on the other hand, is property acquired during the duration of the marriage . The partner the court believes should receive the larger sum of assets will receive any extra property that cannot be divided evenly between the partners.
— 2. Spousal and Child Support: Spousal support is a payment made from one spouse to another during or after the divorce process. If the court believes it is necessary in a particular case, it will award the spouse or life partner with a lower earning potential (or none at all) with the support he or she needs to become financially independent. The amount and length of time this support must last varies depending on many factors, but generally speaking, the more temporary the support, the shorter the period of time over which it will be delivered. Child support is payments made from the non-custodial parent to the custodial parent that are meant to cover the costs of child rearing. The amount of child support is determined by Florida’s Child Support Guidelines, which take into account both parents’ income and the number of overnights each parent has with their children. Like spousal support, child support payments are based on the needs of the child.
— 3. Health Insurance and Life Insurance: After a divorce, your ex-spouse is no longer eligible to receive your health insurance benefits or can keep you on their insurance plan. Similarly, if you purchase life insurance either for yourself or that covers your spouse, you need to change the beneficiary after your divorce.
Child Custody and Children in a Legal Separation
The effect of legal separation in Florida on children mostly takes the form of child support obligations, which arise immediately upon separation. If there is no Marital Settlement Agreement providing for a lesser amount of child support, or agreeing to a deviation from Child Support Guidelines, the presumed amount of support will be determined according to the Child Support Guidelines. Florida Statutes Section 61.30 provides the guidelines for the payment of child support in the State of Florida, although the courts may allow variation in required payments based on special circumstances. Custody issues may also be affected by a legal separation. The mother normally is assumed to be the custodial parent, unless she is deemed unfit or voluntarily relinquishes custody, or her husband becomes the presumptively fit parent. He must then rebut the anticipation that she is the more suitable parent, by providing evidence to show that he can supply a more stable environment for the children. Parenting time is often concurrent and even the father may have physical custody of the children. Florida Statutes Section 61.046 (14) defines "parenting responsibility" as the "responsibility for the significant decision of a child, including, but not limited to, education, health care, and religion." This definition affects the terms of visitation and other relationship issues related to your children’s divorce. In a legal separation, the court awards both parents as equal in terms of parenting responsibilities.
Financial Implications of Legal Separation
While legal separation in Florida is not a term of art to be found in law, it happens when spouses live separately on a permanent or indefinite basis without filing for divorce. Journalists, laypeople, and even some attorneys use the terms separation and legal separation interchangeably when discussing the absence of a divorce action.
To outsiders, the separation of spouses means simply that: living apart. For parties living in Florida, separation has some financial implications that can be important to the parties. The major consideration in defining the interests in a separation is an equitable assignment of property and debts as a matter of equity and fairness. A separation is entered into by parties who agree to an equitable distribution of property and a settlement on any support issues, or who seek some judicial involvement in those matters prior to filing a divorce action.
The law provides that spouses owe a duty to a broken marriage to share property acquired during the marriage in a manner that is fair to both parties. In making this assessment, all of the assets must be organized and categorized, and only the assets and liabilities acquired during the marriage are subject to this division.
Spousal support is an obligation that one party may agree to, or the court may order the parties to follow, pending an eventual divorce action. The action of living separately from one another does not relieve a spouse of the duty of support. When the parties have agreed to living separately and have an established plan for separating their financial lives, the court may enforce those duties until the divorce is final or the separation agreement is terminated. A separation likely alters ongoing expenditures in the categories the court will later assess for alimony purposes. Without further action, a legal separation may impact the terms of a divorce and, thus, the ultimate cost of the parties’ divorce.
The availability of separation as a means of winding down the affairs of spouses is so slight that spouses should consider agreeing on how to divide interests, get a judge’s assistance through an uncontested final judgment, or simply file for divorce.
Obtaining Legal Advice and Representation
As with any significant legal matter, there are nuances that only a well-experienced divorce attorney will know. A family law attorney can ensure you understand all agreements and requirements before you sign and can help you negotiate pertinent terms. Above all: Getting the help of an attorney to help you understand these important terms and to be sure you’re properly protected is crucial.
Family law attorneys have undergone extensive training in interpreting, understanding, and explaining Florida family law . The situation may be further complicated by issues such as domestic violence. Your attorney will help you navigate the process in a way that works best for you and your mental health and your family life.
If you have children, an experienced attorney will walk you through the process of divorce and the children’s best interests, and they will know what to expect in your particular county (there are some variances). They’ll also help you understand details such as how to explain things to your children and how to best deal with an abusive or otherwise difficult spouse.