What is Legal Separation in Florida?
Legal separation is an arrangement of marital status whereby a husband and wife remain legally married according to the laws of the state, but are no longer living together as husband and wife. It is a voluntary act that offers couples a way to live apart while remaining legally married. Legally separated people have a court judgment that determines custody of their children as well as property and debt division.
There is no Florida law governing legal separation, and consequently, Florida does not recognize or offer legal separation. Florida residents must obtain a divorce to become separated and single under law. A legal separation can be done through a formal agreement. The parties can enter into a property settlement agreement that divides property and/or deals with child support and child parenting issues. In addition, a temporary support order can be entered if the parties cannot agree on support issues . A Form 12.942(a) Motion for Temporary Support With Dependent or Minor Children can be used to determine temporary support for minor children, from whichever parent receives primary residential custody.
Alimony awards address a spouse’s needs when that spouse is unable to support him or herself. A request for alimony can be included in a motion for temporary support discussed above. An alimony award can be either temporary or permanent and there is no presumption under law in favor of one type of alimony over the other. Alimony is not typically awarded if both parties can provide for themselves and there is no do so needed by one from the other.
Given that Florida lacks a procedure for legal separation, many require divorce even when all that is needed is a temporary respite from the unpleasures of marriage. Florida residency requirements regarding divorce are very similar to the requirements of legal separation.
Will the State of Florida Grant a Legal Separation?
Florida is a no-fault state, which means that when people want to get a divorce, they don’t need to prove that the marriage has failed because of infidelity or some other reason. Because divorce no longer requires proof of a cause, there’s no legal recourse for married couples who wish to separate without divorcing.
Although some states have a form of "legal separation" where the court decides how debts and assets are divided even if the couple isn’t getting a divorce, Florida does not recognize legal separations. While it’s still possible to get a formal "separation" agreement — this is calling a "marital settlement agreement" in Florida- for purposes of proceeding with a divorce action (and to divide the assets), such separation agreement would be unenforceable and would not affect the status of your marital assets.
Options in Florida Other Than Legal Separation
While Florida does not officially recognize legal separation, there are other ways for couples to separate in Florida. (These alternatives are to some extent limited to the issues of child support and spousal support.) For example, sometimes, as part of an equitable distribution of assets, a spouse may be asked to pay temporary alimony to the other spouse. This is usually requested by a dependent spouse who does not have sufficient income to support herself, or him, and it can help soften the financial blow of a separation for the party who otherwise cannot make payments. It is also possible for one spouse to ask for a post-nuptial agreement during the separation. Such an agreement would divide assets or set aside temporary maintenance, for example.
Another option for a separated couple is to use divorce petitions. For example, even if the parties plan to reconcile, they can file a petition that requests temporary spousal support. This way, even if the court does not divide up any of the marital assets, the court can at least ensure that both parties have the financial means to support themselves. Keep in mind that there are other types of temporary orders, including child custody orders, that may be relevant, especially if the parties have children. For instance, a safety order may be issued, or a restraining order that is temporary in nature.
How to Draft a Florida Separation Agreement
A separation agreement is a legally binding contract between spouses that outlines the terms of their separation. This contract is most commonly used when parties are living apart and do not intend to file divorce papers. Although obtaining a legal separation is not regarded as a formal status in the State of Florida, separation agreements are easy to create and can be beneficial. A separation agreement can help show the date of separation as well as the process that was undertaken for support and custody arrangements. When legal action is undertaken later, whether for divorce or other purposes, the agreement is often used as a reference for provisions for the split that have been obtained.
While legal separation is typically less costly than divorce, it is still important for the parties involved to retain the services of a qualified attorney to assist with the process. When the separation agreement is created by the parties involved, it is unlikely that the specific needs of either spouse will be met. Having an attorney create the agreement and help with the required filings ensures that all areas of concern are addressed and that the interests of both spouses are safeguarded. The agreement should contain information about custody and parenting time for minor children, whether there will be child support or alimony payments, and how the couple’s assets will be divided.
Effects of Living Apart in the Eyes of the Law Without a Divorce
Living apart from your spouse without getting a formal divorce can have legal implications in Florida. Until you are formally divorced, the Florida courts will consider you and your spouse to be married, regardless of whether you live together or separately. You could face a number of legal issues if you choose to live apart, including:
Child Custody
In the State of Florida, neither the biological parents nor the domestic partners of a child will automatically gain custodial rights if they are living separately. In other words, separating from your spouse or domestic partner does not affect your legal right to continue providing care for your child. A legal separation does not alter a parent’s parenting rights, and it does not affect timesharing of a minor child.
Child Support
Unless you and your spouse have formalized custody arrangements and approved those arrangements through the court, Florida law will consider you both responsible for the care of your children no matter where you or your children live. While you can voluntarily agree to changes, a child support order is legally binding between the child and the parents .
Spousal support
Living apart is no guarantee that a spousal support order will not occur before the divorce judgment is finalized. In a contested divorce proceeding, the court will rule on whether one spouse will be required to pay support during the proceedings or during the period after the divorce but before the final judgment. The result could substantially change your finances during the period when you are separated.
Asset division
This division most often occurs when you’re formally divorcing, but if you and your spouse are living separately and are not able to reach a divorce agreement individually, the court may require you to submit proof of assets and liabilities and provide a list of items that may need to be divided. If you owe any taxes, the division of your marital assets will most likely take tax consequences into account.
If you are considering separating from your spouse in Florida, familiarizing yourself with all the potential legal implications in your particular case allows you to make educated choices that avoids any problems in the future.
How Mediation Plays a Part in Separation in Florida
Conflict resolution is an important part of the legal separation process, which will often require assistance from the courts to address issues such as asset division, property division, spousal support and dependent custody. While some matters may be discussed via negotiation with your partner, there are often underlying disputes that must be addressed by a third party in order to find an appropriate compromise during the separation period. So-called alternative dispute resolution (ADR) techniques can be used to speed the process of separation and reduce the costs. In fact, Florida state laws require that couples first undergo mediation by a qualified third party before seeking involvement by the courts. Mediation typically involves three-way communication facilitated by the third-party mediator, with each spouse present. After listening to both sides of the situation, the mediator may grant responses with recommendations for how to evenly divide assets and answer questions related to custody. The mediator may also provide advice and information about the final divorce process. In Florida, mediators are certified by the Supreme Court of Florida after completing a 40-hour Family Mediation Training course. In most cases, a roster of certified mediators is maintained by the local circuit court to help supplant the selection process. An order for mediation from the court is given after both partners have filed for separation. While mediators may offer recommendations and advice, he or she cannot make decisions for either party under state law. Successful negotiation through mediation requires civil communication between partners, but the presence of a third party provided by the court may help parties feel more comfortable in presenting their position.
Financial and Parenting Responsibilities Continue
During a legal separation, couples can divide financial responsibilities on a voluntary basis, though a court cannot compel or enforce separation maintenance, which are financial support arrangements made between couples during a legal separation. Unlike alimony, spousal support legally required of one spouse in a Florida divorce proceeding, a legal separation allows couples to determine the level of financial support, if any, to be paid from one spouse to the other during the legal separation period. To formally arrange child custody and visitation during a legal separation, a couple can file a parenting plan with the Clerk of the Circuit Court and The Office of The Attorney General Child Support Enforcement Parent Portal Listing so that a Child Support Enforcement Authority can enforce the contract if it is violated at any time. Section 752.06(1), Florida Statutes, provides that legal separation agreements may be entered into by the parties "for the purpose of determining the mutual and respective property rights of the parties regarding the status of their marital or nonmarital property and obligations." Legal separation agreements become legally binding as a contract and when they become part of a final contested divorce order.
Common Questions Regarding Legal Separation in Florida
Several questions regularly arise regarding the state of legal separation in Florida. Here are the most common:
Q: Is legal separation recognized in the state of Florida?
A: While many states throughout the U.S. recognize legal separation, Florida does not. In fact, the state has not recognized legal separation since 1997. Legal separation in Florida would involve filing a legal separation agreement with the court that would maintain the legal marriage status, while at the same time outlining the division of marital assets and responsibilities.
Q: If legal separation is not a thing in Florida, how do you get legally separated?
A: Married couples in Florida do not have to legally separate themselves from one another before getting legally divorced. Currently, the only way for a legal separation to happen is when one party files for divorce. The court will grant a dissolution of marriage, which is often the first step toward a legal separation between spouses.
As mentioned, however, legal separation is not a formal or legally recognized divorce. It is simply the legal term used to describe a divorce in Florida.
Q: What are legal separation agreements?
A: A legal separation agreement in Florida is a written document that outlines the arrangements made between divorcing spouses regarding each other’s financial responsibilities and other issues, such as custody of children from the marriage, child support and any other relevant topics .
It is essentially a contract between the two spouses that is legally binding and often a precursor to a final divorce settlement. In the eyes of the court, it creates an irreversible termination of the relationship. While a couple may feel like they’re still married in the sense that they share a house and handle each other’s finances, the separation agreement essentially severing the marriage bond and replaces it with a contractual relationship and terms of the separation and each party’s obligations.
Q: What are the requirements for a legal separation agreement in Florida?
A: Currently, Florida does not have formal requirements for a legal separation agreement. In other words, it is a purely voluntary process in which the divorcing spouses decide for themselves which details to address in their separation agreement. However, the agreement must be signed by both spouses in order to go into effect. As time goes on and the parties become more accustomed to their new, separated lifestyles, it becomes harder for one spouse to renegotiate the terms of the agreement without just cause. If no agreement can be officially made between the parties, the process will then go through the regular channels of divorce litigation.