What is Legal Separation in Florida?
Legal separation is not a divorce, but for some people, particularly those with religious or financial considerations, that small difference can make a big difference. Since "divorce" has a very specific legal meaning under Florida law, there is no FLORIDA LEGAL SEPARATION ENTITY to be found anywhere. In fact, FLORIDA LAW CONTEMPLATES legal separation under several categories some of which we discuss below:
- Separate Maintenance (Rule 12.015 – Florida Family Law Rules of Procedure)
- Alimony Pendente Lite (Rule 12.975 – Florida Family Law Rules of Procedure)
- Temporary Support of Minor Children and Maintenance (Rule 12.995(b) – Florida Family Law Rules of Procedure)
- Dissolution of Marriage (Rule 12 . 905(a) – Florida Family Law Rules of Procedure)
Just as a divorce requires grounds on which it may be granted, so does legal separation. The most common grounds for being granted a legal separation in Florida are gross neglect of duty and adultery.
Even in states that do allow legal separation, however, many couples don’t understand how legal separation differs from divorce. First, legal separation ends Courts’ jurisdiction over the property or debts of the parties, while divorce does not. And second, legal separation does not end the marriage. For example, if a couple separates and one of them dies, the separation agreement will not control the distribution of marital property, but the couple’s terms will control the distribution of separate property.
Who Qualifies for Legal Separation
In order to be eligible to file for legal separation in the state of Florida, you are required to meet certain criteria. The very first one is that you must be a spouse of a Florida citizen. This means you either have to be a resident of Florida for the past six months or have gotten married in Florida. Either way, you will most likely be in the state when you file for a legal separation.
You and your spouse must have a marriage that is either legally or factually broken. You don’t have to have evidence of actual dissolution of the marriage, such as physical violence and separation from the home, although abuse can make filing less complicated. You do need to have substantial disputes with your spouse, but the basic irretrievable breakdown of the marriage may be all the proof you need of your case for a legal separation.
Neither spouse can have a substance abuse issue that would affect their ability to live separately from their spouse. If either spouse has had a serious eating disorder, been incarcerated at some point, suffers from alcoholism or drug dependency issues, they will have to prove to the courts that they can meet the requirements for a legal separation anyway. In cases of mental and emotional health issues, one spouse will have to prove that he or she does not suffer from manipulation or abuse of the other spouse due to the mental health issue in order to qualify.
If you have children, you and your spouse need to both be able to meet the requirements for a legal separation when it comes to child support, child care, quality of life and visitation. You will be required to present information to the courts about how you have been meeting the needs of the children and whether that level of care and quality will continue in the event of a legal separation.
How Do You Obtain Legal Separation
Steps to Achieve Legal Separation in Florida:
1. Financial Preparation
Before you can file for separation, it is crucial to gather all financial information. This includes bank statements, property deeds, and information on your debts.
2. Spousal Support Calculation
If you have been a stay-at-home-parent, it’s important to start estimating your spousal support. This will help you budget and determine your needs.
3. Child Support Calculation
In most cases, the parent with the largest parenting time will be entitled to child support. Therefore, you need to know what your monthly expenses and needs are for the child to calculate appropriate child support.
4. Housing Arrangements
In a legal separation, you have the option to remain in the family home or move out. However, if you decide to stay in the house, please understand that in most cases the other spouse is entitled to 50% equity.
5. Move Out
Decide where you will be moving to and when. Look for options that are within your budget.
6. Legal Paperwork
You will need a parenting plan agreement, parenting agreement form, and other court documents filed.
7. Mediation
It is highly recommend that you go to mediation with the other spouse to try to resolve any outstanding issues.
8. Finalizing Separation
If you can reach an agreement, a court order completes the process.
Legal Separation vs Marital Settlement Agreement
Legal separation and a marital settlement agreement have different functions in Florida. A legal separation is essentially putting the enforcement of support, parenting plans, shared parental responsibility, timesharing or alimony terms on hold. It may be a useful tool for parties who need time to finalize their divorce but plan to similarly share custody; for those there is an alternative to a legal separation called a "Pendente Lite" motion. A marital settlement agreement, however, is not so much a vehicle for enforcement as it is a contract that permits the parties to agree upon their post-dissolution plan.
First, the term "legal separation" can have two meanings. Some people use the term "legal separation" to describe the process of terminating the marriage without finalizing it—a divorce—until some later date. Florida has no formal legal separation process. The requirement in our state is to either fully dissolve a marriage or to hit another reset button (like filing bankruptcy). Second, some people use the term "legal separation" to focus on the substantive issues after the marriage has been terminated but has not yet finalized. Again, that is not something that officially exists in Florida, but courts recognize the utility of the concept.
The difference between a legal separation and a marital settlement agreement is when the order is created. One is created by a court, the other is created by the parties. A legal separation is a court order. Once signed by a judge, a legal separation is legally enforceable against both parties. A marital settlement agreement is a contract. Contract Law governs marital settlement agreements and the usual case law remedies would apply.
This is important because that means that if you ignore the terms of a marital settlement agreement, you cannot be held in contempt of court. You can be sued. But contempt is when one party requests that the court step in and force the other party to do something. So since that remedy is not available to a party to a marital settlement agreement, the remedy pipeline becomes much longer.
There is also a property differentiation; even though marital settlement agreements can be merged into a divorce judgment, they are technically reserved, so that’s another reason to be careful to enforce them if you don’t want them merged into the final divorce.
So, the general process for pursuing a marital settlement agreement is that the two parties come together, agree on a plan, and then a single document is drafted that conveys the pertinent information. Frequent language used in a marital settlement agreement include the parties’ names, the parties’ addresses, the parties’ marital status, the enforcement of a current child support order, child support provisions going forward, a time-sharing schedule with the minor children, and maintenance payments and healthcare provisions.
Finally, this document is signed by both parties and then "filed" with the Clerk of the Circuit Court which places the document in the court file for the divorcing case. However, it is important that the parties also not only file a copy of this agreement, they also take steps to ensure it is submitted to the court for court approval.
Pros and Cons of Legal Separation
One of the primary reasons a legal separation may be preferable over divorce is that it offers couples a way to reorganize their lives without the finality that divorce entails. Examples of how this process can help include:
- Affording time for reflection: When a marriage is in crisis, there is often little clear thought. Ultimately, a decision will need to be made whether to pursue reconciliation, divorce or some other course of action entirely. A trial separation, realized through legal separation, provides the time necessary for the couple to make an informed decision.
- Taking the pressure off: Like the example above, when a couple chooses to enter into a legal separation, they are no longer pressured by the issues that drove them apart. This can also afford them the time and space needed to view their relationship from a fresh perspective.
- Allowing the application of the results: Immediate transition to the divorce process after a couple has terminated their co-habitation can be daunting. The resulting issues concerning division of assets, custody of children, alimony, etc., can be overwhelming and present high levels of uncertainty. Going through a marriage counseling process or other therapeutic intervention, while "separated," can provide the couple with tools and knowledge they can put to use should their marriage survive the separation.
- Lessening the financial burden: Divorce can be a lengthy process, due to its finality and the automaticity of the court. Tax year deadlines, hidden assets, child support and alimony obligations tend to creep up on those in the midst of a divorce. In a legal separation , these obligations are not automatically applied and can be pursued soon down the road (or never) without the high costs of divorce.
While a legal separation may seem advantageous, there remain several potentially severe drawbacks to consider:
- Unresolved employment concerns: Alimony and other support obligations may become a permanent aspect of a legal separation agreement-an issue often avoided through divorce. Child custody and support terms may also be viewed as unfairly resolved, with the possibility of a solo or shared absence, devastating to children involved.
- Continued disarray of any children’s emotional state: While a trial separation may give children the breathing room they need to view the process from a different angle, placing them essentially in limbo does little to assuage their anxieties, and can even exacerbate them.
- Lengthy – but not final – waiting period: Just like divorces, legal separations are not settled overnight. The process can drag on for months or even years. This uncertainty takes an emotional toll on many, and can place a hindrance on the ability of both spouses to move on afterwards.
- Risk of reunification: When spouses are physically separated for years, it’s easy to think that, with time, the marriage will get back on track. Unfortunately, a large percentage of legal separations often end in divorce. The costs associated with the separation may well be for naught.
Some couples do find that the drawbacks are not enough to dissuade their attempt at reconciliation. Despite this, getting through the legal process without the help of an experienced attorney can prove difficult.
Your Rights During Separation
Separations are just as complicated as divorce when it comes to the law. Of course, you don’t have to worry about child custody or equitable distribution of assets (in Florida "equitable distribution" of the assets and liabilities accumulated during the marriage is the exclusive remedy for purposes of distributing those assets and liabilities) if you’re not married. However, in the event that courts do become involved in your legal separation, having a clear separation agreement is very important. It’s worth doing right from the start.
A DIY agreement is certainly acceptable, but if you and your spouse have substantial assets, children, or other issues, it might be worth paying for an attorney to draft the separation agreement. Otherwise, you could risk having the agreement struck down by a judge or being found in contempt.
Your attorney will advise you on whether or not you need a legal separation agreement, and he or she can help you negotiate one with your spouse. If you want your separation to be legally binding, however, you need to ensure that the agreement is strong enough to hold up in court.
There is no hard and fast rule about how a separation agreement should look. However, there are certain provisions you should consider including. These include provisions for:
Your settlement agreement will cover all of the issues required for a legal separation. In general, it will function similarly to a divorce settlement agreement but will not actually terminate your marriage.
The key is to have a strong separation agreement that addresses all important issues. If you have children or property, this is even more important because the separation agreement may impact a future divorce settlement.
Legal Separation FAQs in Florida
Legal separation in Florida is short but complicated. Its requirements can be tough to understand, along with the nuances of how it works. Here are some commonly asked questions about the process:
How long does legal separation in Florida last?
The timeline of your legal separation will depend on the circumstances of the situation. Usually, couples seek legal separation before a divorce to have time to work things out while still maintaining the legal protection of separate residences and finances. Sometimes, however, legal separation can last many years in failed marriages. In these cases, the legal separation may not ultimately lead to divorce, but it’s primarily used as a way to avoid making a final decision about the marriage while protecting the financial and physical interests of both parties in the interim.
If you’re separated from your spouse, who gets custody of the children?
Most likely, the same custody arrangement that has been in place while you are married will continue even after you’ve opted for a legal separation. You and your spouse will continue to share legal custody of the kids, which gives you both equal rights when it comes to making decisions for your children. Because of this , typically only physical custody arrangements will need to be made.
What are my financial obligations during legal separation?
Your financial obligations are the same as they were when you were married. You are expected to provide financial support to your spouse, and your spouse is expected to provide support right back to you. There will not be any spousal support as a result of your legal separation, but you may be required to provide temporary child support if you are the primary earner in the household. In many cases, legal separation will often force one spouse to move out of the marital home. If you’re the one moving, know that losing your home can significantly affect your income until you get back on your feet. Make sure you understand ahead of time how your finances will be impacted by the decision to legally separate.
Can I use legal separation to avoid a divorce?
Florida courts do not recognize legal separation as a formal status, meaning this is a completely voluntary process. Even if legal separation successfully helps to repair a broken marriage, there is always a chance that if the marriage continues to deteriorate and parties can’t come to an agreement, one or both spouses will file for divorce.