The Basics of Legal Separation in the State of Florida
In Florida, legal separation essentially refers to a period of separation in which the parties want to resolve support and other issues between themselves. However, it is not a supported legal doctrine in Florida.
There is no special filing or legal proceeding for the purpose of legal separation in Florida. Instead, a legally separation is essentially a separation with an agreement between the parties regarding all outstanding issues such as custody, support, and property issues. Such agreements are typically reduced to writing in the form of a separation agreement with the parties acknowledging that they intend to handle these matters by agreement rather than through a final resolution in litigation.
Such an agreement does not, however, have the force of law as could a divorce judgment and the parties can change their minds and move quickly to obtain a divorce by filing a petition for dissolution of marriage. In such a case , the agreement may be used as evidence regarding the issues between the parties to aid the judge in resolving them. If a lawsuit is not forthcoming, the agreement can also be enforced by way of a separate lawsuit for breach of contract.
Legal separation is also a confusing term since it can refer to different things. Sometimes legal separation may refer to a separate filing for simplified divorce where the parties separate for a specified period of time. As part of such a filing, the parties will often seek temporary relief in areas such as child support, alimony, and health insurance coverage. In this way, the parties are separating for a specific period of time but yet they have the option to dismiss the action or contradict the terms by filing a counter petition for dissolution if they choose to do so.
Separation of Legal and Physical Aspects
When a married couple no longer wishes to reside together, they can choose from a number of alternative arrangements for the period prior to divorce. In this blog post, we will examine the differences between two forms of separation: legal separation and physical separation.
In some legal contexts, "separation," "legal separation," or "judicial separation" refers to the process whereby a married couple obtains a legal action mandating the terms and conditions upon which they will live apart.
The most significant difference between legal and physical separation relates to whether the couple’s rights and/or obligations have changed under Florida law. If the parties merely separate physically, they remain legally married, and the terms of their separation may never matter legally unless or until one or both parties file for divorce (dissolution of marriage). As discussed infra, a legal separation may have the same effect as a divorce, terminating the marriage as of the date of such separation.
Options Aside from Legal Separation in Florida
It may be the case that a couple cannot or does not wish to legally separate. This could be due to religious reasons or another matter. Florida does not have legal separation as part of its family law. However, there are alternatives to legal separation that may be sought instead. In these cases, the couple may file for divorce. This will likely be more expensive and take longer than legal separation. However, building on the previous example, the husband may be able to say in 5 years that he is divorced rather than separated and ended up with less money in his pocket than he would if he had pursued legal separation. Legal separation is often a useful tool for a couple that believes they can break up and live apart amicably but still need a legal separation to iron out the details.
Another option is a separation agreement. A couple can agree to live apart and have one spouse file the separation agreement with the court. The judge does not have to approve it, like with a paternity agreement, so this is often seen as a judge making a recommendation on what the family law court should consider but not as a firm ruling.
Drafting a Separation Agreement
Agreeing to legal separation requires the creation of a legal separation agreement. A legal separation agreement is a contract between spouses that sets out their intentions with respect to their children and property. A legal separation agreement may state how much alimony will be paid. Because courts have a duty to look after the interests of children, a legal separation agreement cannot set out anything for a child that a court could not order. That means that any provision with respect to children must be in the best interests of those children. Moreover, a parent cannot be required under the Florida separation agreement to agree to order equal time sharing if he or she believes that such an order would not be in the best interest of the children. If the terms of a Florida legal separation agreement appear to be in the best interests of children, a Florida judge will usually uphold them. When reviewing a Florida separation agreement, a Florida judge will have to make sure that neither party was coerced into signing.
Effect on Progeny and Finances
In Florida, separation is not something that walks into a courtroom as a basis for any order. It is a term used in casual conversation to essentially describe the relationship status of two people who are otherwise married. Florida divorce law however has a strict statute that requires proof and residual impact to either party in order to obtain an award of alimony or permanent maintenance. In general the courts will not entertain these requests for assistance unless the relationship is formally dissolved. However, when a couple is separated for a period of time prior to one or the other filing for an official divorce, there are many factors that can impact the children in particular and the finances for all involved.
Impact on the Children
In Florida, there are no legal stipulations regarding custody and support related to separation. Custody and support are strictly governed under the statutes specifically addressing divorce. Because separation is not a term that exists within the Florida legal system, facts regarding separation cannot be used as evidence to reinforce or establish basis for an award of custody and/or support for the children. If the couple seeks to divorce, separate awards for custody must be sought through the family law courts and are separate from the actions taken to provide for a divorce. It is important to note that the courts will not issue rulings regarding child support and custody until such time as a formal filing for divorce has taken place. For this reason, mediation is often encouraged as the first step in the divorce process to settle these issues while the paperwork for divorce is filed simultaneously.
Impact on Finances
In the state of Florida , there are no legal options for separating property, assets and debts from a divorce at the time of separation. However, if the parties have established what is known as "separate property," they may seek to have those assets excluded from any awards of support or maintenance at the time of the divorce. The issue becomes that without a formal divorce proceeding, there is no legal mechanism by which property rights may be established and maintained. For example, when one party earns income during a period of separation, the other party may have a claim on any revenue derived from duties performed as a couple. This means they may also have a claim to any earnings related to individual employment or revenue generating activities. If the marriage is legally dissolved, these claims are not possible. However, as long as the couple is only separated, no legal ruling exists to separate the parties from one another in terms of revenue and revenues earned for the purpose of maintenance or support. Much like the processes of establishing custody rights, any allocation of property and assets must have a legal proceeding in order to obtain an award of assets that does not specifically include the awarding of any property or assets acquired or claimed by either party while separated. For any process to be unambiguous, it is essential that the parties observe the boundaries of a separation without formalized documentation and not enter into any contracts or asset claims that could be used against them in court if the couple continues to separate rather than divorce.
Consultation and Guidance
Involving a lawyer in the separation process is helpful in determining your options before and proceeding with the legal separation. It will also help you plan the best approach for the issues you need to resolve with your spouse. With a properly executed Separation Agreement, you can resolve all or some of the issues that typically arise in a divorce. Having an experienced lawyer by your side will ensure that the draft Separation Agreement you enter into with your spouse is comprehensive and that all your rights are protected regardless of whether you have children in common with your spouse or not. If you are interested in getting legal advice relating to a Florida legal separation, our Orlando family law firm handles cases involving separation from spouses and seeking Divorce in Orlando.
Common Inquiries
Q: Is a legal separation the same thing as a divorce?
A: No. Legal separation is an alternative to divorce. While a divorce legally terminates the marriage and divides the assets between spouses, a legal separation maintains the marriage and requires that couples continue living and making decisions together. The primary difference is that a separate maintenance agreement doesn’t dissolve a marriage, whereas a divorce does.
Q: How do I file for legal separation in Florida?
A:
Below are the steps you typically follow in order to file for legal separation in Florida:
Step 1: Living Apart
There is no legal separation in Florida. You and your spouse simply need to separate if you choose to live apart. You and your spouse should obtain legal advice from separate attorneys and then draft a separation of separate maintenance agreement between the two of you.
Step 2: Determine the Filing Procedure
There is no law that prohibits a person from filing a petition with the court requesting the entry of a specified order regarding alimony, child support, visitation, the division of assets, etc. to help ensure you are both following the rules you set out in your separation agreement.
Step 3: File in the Appropriate Circuit Court Telling the Court You Want a Legal Separation
Once you and your spouse decide to separate, you can file your legal petition with the appropriate Court within the state of Florida where you have resided for the past six months immediately preceding the date upon which such petition is filed.
Step 4: Serve the Other Spouse
Following the filing of your petition , one of the parties must serve the other party with a copy of the petition. While the process can vary depending on the circumstances, you should follow the requirements found in the Florida Rules of Civil Procedure and the Florida Family Law Rules in order to effect proper service of process.
Step 5: Attend the Hearing
After service has been properly effectuated, you or an attorney on your behalf must attend the hearing and testify before the Court. If you are seeking visitation with your children, you should also be ready to provide the judge with evidence to support your request for visitation. Make sure you also bring your completed forms to the hearing if you have not already filed them with the court.
Q: Do you have to file for legal separation or legal separation settlement papers?
A: For most couples, the decision to separate is mutual, often best approached through mediation rather than litigation. It’s important to speak to an experienced Orlando divorce attorney before you decide which route to take.
Q: Are spouses in Florida legally responsible for debt incurred by their spouse?
A: Most debts that a couple incurs during their marriage will be considered joint debts.
If you took out a mortgage loan and both of you signed the paperwork, both of you are legally responsible for the mortgage, even if one spouse is living in the home and the other one is not.
Some debts are incurred by one spouse are for a specific purchase. For example, a credit card account established in one spouse’s name and used only by that spouse would generally be the responsibility of the spouse who financed the particular item (unless the item was for a use that benefited both spouses, such as a joint vacation.)