What is a Legal Separation?
A legal separation is often discussed in Florida as if it were a "divorce-lite." In reality, it is a separate form of relief with some of the elements of a divorce action. In addition to providing for some or all of the same relief as a divorce case, there are several differences between a divorce case and a legal separation. Why would people want to be legally separated instead of divorced? There are many possibilities, including but not limited to: A legal separation is somewhat similar to filing an Uncontested Simplified Dissolution of Marriage (or "simplified divorce"). However, an action for legal separation, unlike a simplified divorce, allows for any relief that could be obtained in an actual divorce case with different titles (like "separation maintenance" instead of alimony). To get a legal separation in Florida , the parties must file a marriage dissolution petition just like a divorce. This means that the parties must have been married for at least 10 days before the case is filed. It also means that the parties need to specify the grounds for the legal separation in the petition. The parties do not have to demonstrate that there has been adultery or other fault on the part of the parties—merely a permanent partial breakdown of the marriage will suffice. There are also endorsement and waiting period requirements that apply to legal separation cases in Florida. It is also worth noting that the Florida Supreme Court specifically removed the "legal separation" form from the forms that are approved for use by the Florida courts. It is possible for parties to obtain a legal separation in Florida, but they must do so through a case for dissolution of marriage.
The Law in Florida on Separation Proceedings
As noted in our podcast series on Marriage and Divorce in Florida, Florida does not recognize or specifically provide for legal separation. However, there are two alternative legal processes: (1) the process to establish and enforce periodic spousal support or alimony, which may be pursued pursuant to section 61.09, Florida Statutes; and (2) the court process to establish a parenting plan under section 61.125, Florida Statutes, which implements the provisions of the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) as codified in sections 61.501 through 61.541, Florida Statutes.
Legal separation is the action of dividing parties that are living together without ending their legal marital status. The reasons to pursue a legal separation rather than a divorce vary from case to case but most often include religious convictions, delaying the time to file for divorce, and/or concerns over healthcare coverage.
Both of the legal processes to establish perpetual spousal support and a parenting plan are family civil cases initiated by filing a Petition with the Circuit Court for the county in which one of the parties reside, pursuant to Florida Statutes, and can take several months to complete depending upon the issues involved between the parties, the time it takes to negotiate an agreement (if possible), the availability of judicial resources, and other factors. As a result, these processes are best pursued with the assistance of experienced legal counsel, as failing to comply with the technical requirements of the Family Law Rules of Procedure and the Florida Statutes can result in unnecessary delays and increased costs.
Drafting a Separation Agreement
A final judgment of divorce is not the only way for spouses to divide their assets in Florida. If you do not want to go through the entire divorce process, you and your spouse have the option of agreeing to a legal separation; however, understand that a legal separation is not legally recognized by Florida courts. It is possible, however, to create what is called a legal separation agreement.
In a separation agreement, spouses can agree on the particulars of how assets and debts should be divided, and lay out the terms just like in a divorce. A legal separation agreement is a legally enforceable contract wherein both spouses relinquish any further rights to the specific assets mentioned, and a separation agreement will typically include provisions for: custody, child support, and other details. The couple can execute the separation agreement and all of the details outlined within will then be enforceable in a Florida family law court. It is important to note, though, that parties can still subsequently go to court regarding other issues not covered in the separation agreement, such as an increase in child support if one parent loses their job or moves out of the country.
Talking to a Family Lawyer
A skilled family law attorney in Florida can offer invaluable help when you are deciding whether legal separation is the right choice for you. These professionals guide their clients through the divorce process on a daily basis and can help them with every aspect of this process, including the steps leading up to obtaining a divorce.
Although you may be obtaining a legal separation instead of a divorce, an experienced Florida divorce attorney can offer guidance with regard to all aspects of the divorce process and the issues that are commonly involved. Legal separation can sometimes last for years, and it can be difficult to navigate these waters without an experienced ally by your side.
Your attorney can give you sound legal advice regarding the advantages and disadvantages of separation. This advice can give you the information you need to make an informed decision about whether separation is a good choice for you. If you have children, it will be important to understand how this choice will affect them. Your own financial stability is another extremely important issue to consider. A knowledgeable family lawyer can help you understand how your financial situation may be affected once you are no longer living with your spouse and any potential solutions to address these concerns.
Another major area where your attorney can offer help is in drafting agreements that may become part of your legal separation. For instance, if you and your spouse have decided to separate, it is a good idea to put the terms of your agreement in writing. This can prevent confusion in the future and can serve as a roadmap to help you stay focused on your shared goals.
Your attorney can also assist you in understanding your rights and responsibilities throughout the process. Depending on your situation, your attorney can advise you about whether you may want to ask for temporary spousal support or for child support from your spouse. You may need to obtain assistance in seeking sole custody or time-sharing. Your attorney can also explain your child custody and child support rights, and if applicable, those may be able to help you create appropriate child custody arrangements.
Your family law attorney can also assist you in any hearings, mediation meetings or court appearances related to the termination of your marriage in Florida.
Options besides Legal Separation
While legal separation may be viable in certain situations, many couples may not find it to be a convenient option. Some alternatives to legal separation may include obtaining a divorce, filing for legal counseling and mediation services, or obtaining a court order for the payment of spousal and child support. These alternatives can make it easier for people to split as they divide property and debts and make appropriate decisions regarding custodial arrangements.
Obtaining a Divorce – Florida divorces can be initiated by filing a petition with the court. Although Florida is a no-fault divorce state, it is important to document a valid reason for the divorce. In order to file for divorce, you must have a legally valid marriage. You must be able to confirm that the marriage took place in Florida or that one or both of you have resided in Florida for the past six months. There is a 20-day waiting period after filing a petition for divorce before the hearing takes place .
Working with a Counselor – Marriage counseling services may help you and your spouse reconcile, even after you have separated. Mediation services may also help you resolve conflict – although this solution is not necessarily for all couples. Many times, mediators may be assigned to parent matters upon request of the court. However, these mediators are not qualified to provide counseling services during the sessions and may refer you to a licensed counselor outside of the court system.
Obtaining a Court Order – If spousal support is required for your family to meet financial needs and a legal separation has not yet been approved, you can still petition the court for a temporary order requiring support payments. This type of contract can be requested upon filing a petition for divorce, and it is possible to obtain one even if you do not have legal grounds for separation. Many requirements regarding spousal and child support are determined during the divorce process, but you have the option of obtaining a temporary order in cases where support is needed right away.
Effect of Separation on Child Custody and Support
Just as with divorce, legal separations can have a major effect on child custody and support arrangements. It’s important to note that while you may have legally separated from your spouse, your children have not — they will still have ties to both parents and it’s critical to establish a parenting plan that’s in their best interests.
The factors that influence a parenting plan for a legal separation are the same as those that inform a divorce: the age of the children, the stability of their home environments, the parents’ schedules and income, the history of care of the children, the physical and mental health of each parent and the preference of the children if they are old enough to articulate their desires.
A legal separation can set a precedent for future custody agreements just like a divorce. A legal separation agreement allows parents to legally establish a parenting plan. A judge will review the parenting plan for fairness (especially where children are concerned) and may incorporate it into a court order. A court order is a legally binding and enforceable contract that may only be amended through the judicial system. If parents agree to modify custody arrangements post-separation, the modification must be sanctioned by the courts.
Separation in Florida: Finances and Money Issues
Considerations regarding financial issues in legal separation in Florida include issues related to the division of assets and liabilities between the parties, and also possibly whether there will be spousal support (alimony) provided for one of the parties. It is important for a legally separated couple to be in agreement as to how to divide their assets and liabilities during a legal separation as the clear expectation is that this divide is temporary, without a transfer of title to said assets or liabilities between the parties. The parties should make sure to keep careful records and/or provide for regular updates of their financial position so there are no disputes down the road as to the exact title or ownership of assets and liabilities and it is clear what is pending and what is permanent. Also, in the case where a party has received an inheritance or a gift, that party should make sure that their name is continued to be shown as the sole owner of their inheritance or gift, even if commingled with marital assets. Often, separate accounts are maintained for the parties with each party maintaining income therefrom and paying bills with funds from that account. If the parties maintain a joint account, it is imperative that there should be an agreed upon and automatic schedule whereby funds earned by income from employment are paid into this joint account and that the proper parties have the ability to sign checks for limited purposes agreed upon in advance. With mixed accounts, there is sometimes a dispute afterwards as to sums that can be determined to be separate property versus marital property. Obviously, it is always better if the parties can agree in advance what type of account is going to be used (i.e. Separate versus joint) and limit themselves to that type of account.
For matters regarding spousal support (alimony), the parties can agree as to how much indemnification there will be during the period of separation If the parties cannot come to an agreement as regards these issues during their separation, it will still be important for any executed separation agreement to have the language indicating a clear intention by the parties to treat the assets and liabilities as separate during the pendency of the separation. In addition, the separation agreement can specify that once the parties have become divorced, their pre-separation assets and liabilities, as well as any spousal support due, will be the responsibility of the party who has been assigned to that particular asset, liability or support amount under the separation agreement.
Legal FAQs about Separation in Florida
1. What steps should I take before filing for a legal separation?
Before filing for legal separation, it is advisable to consult with an attorney. They will help you understand the process, determine its suitability for your situation, and outline your rights and responsibilities.
2. Can my spouse sue me for separation?
There is no basis for a lawsuit for legal separation in Florida. You may file for divorce as soon as your spouse leaves or you leave. Nothing bars you from doing so.
3. How do we decide on separation of assets and liabilities when we are legally separated?
The issue of asset and liability division can be complex. The immediate step will be to list all marital and non-marital assets. Then, you can work to divide marital property equitably between yourselves through mediation or negotiation.
4. How will our kids be affected?
Much like the divorce process, legal separation requires determining the parenting plan and timesharing schedule. State guidelines and your particular circumstances will help inform these decisions . The best interests of the children will govern and a guardian ad litem may be appointed to assist the court in determining the children’s best interests.
5. Can I modify or cancel a legal separation agreement later?
Yes, the terms of a separation agreement can be modified if you and your spouse both agree or, in certain circumstances, if you seek a petition from the court. If the issues involve custody and/or child support, you must go through the court system.
6. Can we have a legal separation agreement without filing for divorce?
You can have a separation agreement without a divorce decree. This agreement may help you avoid divorce court for some time, but it does not preclude it or make it any more likely that you will reconcile.
7. What happens to a legal separation agreement if we got back together?
Once a legal separation agreement has been filed with the court, the spouses are legally separated. There is no "undoing" a legal separation; however, it is possible to reconcile your marriage after separation. You could file a consent motion to the court or separate the documents stating you are no longer separated.