How Florida Law Defines Legal Separation
In the context of Florida law, the term "legal separation" does not generally refer to a status of having separated from one’s spouse without obtaining a divorce. Like many other states in the United States, Florida does not recognize legal separation as a status that is separate and distinct from divorce.
However, in Florida, the authority for a legal separation does exist where the court has separated the parties as to their property and monetary obligations through a "temporary order" entered during the pendency of a divorce action or dissolution of marriage action. Under Florida law, if a temporary order is entered, then it operates to allow the parties to live separate from each other in the same way as though they were legally divorced or separated .
While divorce pending (or dissolution of marriage pending) orders are sometimes referred to by family lawyers as "temporary orders", the plain meaning of a temporary order is simply to occur for a limited or fixed amount of time only. As such, the parties remain married for all purposes until one of them files a petition for the dissolution of marriage or an action for divorce with the clerk of the court of the county where the petitioner resides, which is required by law before a divorce is granted (absent some unusual circumstance).
Obtaining a divorce in Florida is similar to obtaining a divorce in other states. Most states provide for "grounds" for divorce. In Florida, there is generally only one ground – irreconcilable differences, which means that the marriage has irretrievably ended and there is no hope of saving the marriage.
Legal Separation Versus Divorce Under Florida Law
Legal separation in Florida is not something that has been asked frequently by my clients, and for good reason. This is because legal separation does not really exist in Florida like the same it does in some of our neighboring states. Essentially, there is no such thing as legal separation in Florida. Instead, couples can either live apart while not legal separated, or they must get a legal divorce to formally. Couples cannot however just legally separate to remain married.
So what does this mean anyway? Well this means that Florida does not have any type of legal proceeding for a legal separation. This means that—unless you are going to formally get divorced—any form of legal separation is not a thing. When separating from your spouse, you must either have a legal agreement that defines how you and your spouse will live apart, or get a legal divorce from your spouse. You typically need help from a skilled Florida divorce attorney when it comes to establishing those terms with the court.
Steps for Filing for Legal Separation in Florida
Upon deciding to separate, an individual may simply move out of the marital home and begin leading a life separate from his/her spouse. Such action may or may not necessarily result in the establishment of legal separation, as legal separation requires an additional step. Where parties agree to separate and programmatically divide assets, debts, liabilities, and parenting time responsibilities voluntarily, that is not a legal separation, rather, it is merely a technical separation whereby the parties have agreed to live apart and divide and share their resources amongst themselves. Ultimately, legal separation, in this case, is only established when a party would like to get the court system involved in enforcing their agreements. In other situations, substantive disagreements between the parties results in the need for judicial intervention. In those cases, a party may petition the court for an order of relief, thereby establishing a legal separation against the other party. There is no formal "legal separation" in Florida as there is in other jurisdictions. The Family Law Act does not recognize a legal separation as a formal legal action. Parties can separate without going through the court system and establishing a formal separation, however, if parties wish to enforce their agreements and more importantly their parenting plan, they are left with the need to pursue a dissolution of marriage action with the ultimate goal of separating themselves from one another for the rest of their lives. Parties cannot obtain a decree of legal separation. If a party wants to be legally separated, he/she must file for a Petition for Dissolution of Marriage. The petition will become a record of the court order itself. Essentially, it is the work of the party’s attorney in preparing the judgment and will record the terms and agreements of the parties in the divorce. It depicts an order of the court for the parties with their respective obligations. Why is this significant? It becomes significant because if one party fails to adhere to the obligations in the Judgment, it is subject to modification, reformation, or fall-back positions, and it is essentially held over the party’s head as the order of a judge for future non-compliance. Parties who are seeking a separation should retain an attorney to discuss the importance of having a court enter a Judgment of Dissolution of Marriage. It can spare parties years of litigation in their future if they decide to separate, and if they try to arbitrate and negotiate the matters themselves, the particulars and specifics may be lost in translation and/or fail to be properly memorialized. Disputes arise when there is a lack of documentation and one party feels wronged by the situation. In many instances, parties have to ask themselves, would they want to be punished for a lack of documentation? Parties can establish a marital settlement agreement which can be enforced by the court upon dissolution of marriage. Ultimately, a legal separation in Florida cannot be achieved by using a separation agreement alone as parties have to go through the dissolution of marriage process at the same time. If a separation agreement is entered, it should be filed with the court in anticipation of a later Divorce Action or petition for dissolution of marriage. This becomes important as it uniquely attaches a date to the entries of the separation. Most if not all family law attorneys would recommend that agreements should become the subject of a court order. Florida courts look favorably upon instruments that are court enforced. It gives parties recourse and relief as to the agreements they make. On the other hand, parties cannot always guarantee what their future holds, so they should maintain a level of flexibility to minimize personal stresses.
The Pros and Cons of Legal Separation
Before deciding whether or not to go through with the legal separation process, you must weigh both the benefits and drawbacks. It is important to understand the positive and negative implications of legal separation for you, your spouse, and your children.
Benefits
Some of the benefits of legal separation include:
Preserving your marriage. While legal separation allows you to live apart in separate physical locations, separating with the legal status of "married" may help you or your spouse reconcile. With the potential for reconciliation, saving your marriage before a divorce is permanent may be possible.
Financial advantages. If you or your spouse cannot afford to live on "separate incomes," legal separation maintains the couple’s marital status while allowing each spouse to live in the standard of living to which he or she is accustomed. Additionally, you may qualify for health insurance benefits or tax breaks if you remain officially married.
Spare your children from the effects of divorce. Legal separation allows you to live apart and lead separate lives without involving the family court system. Your children may not experience the perceived trauma of a divorce or the negative connotation of a dissolution of marriage.
Maintaining certain legal protections. When you file the appropriate legal separation documents, some courts issue injunctions preventing either spouse from selling or giving away community property, such as a jointly-owned home. If you decide to file for divorce, your case may proceed more easily, as the legal duties and responsibilities associated with separation would already have been outlined in the official legal separation order signed by the judge.
Drawbacks
Despite the advantages of legal separation, you must also take into account some of the drawbacks:
No financial or legal remedies. Without filing for a divorce, neither you nor your spouse are allowed to request alimony or spousal support. Legal separation does not determine your entitlement to spousal support. Additionally, both parties retain the ability to seek financial remediations against the other when sufficient cause exists under the law, such as a breach of fiduciary duties or over-expenditure of marital funds. In other words, you can still sue your spouse for financial satisfaction when necessary.
Continued obligations to one another. When you file for legal separation, you and your spouse maintain certain rights and obligations with respect to one another. For instance, you may be entitled to certain social security benefits based on your spouse’s financial status or income level, but will lose those benefits if you file for divorce. Of course, the situation differs if you share a child this with the other spouse. In addition, any transfer of property between spouses is free from taxation until a marriage is dissolved after a divorce.
No extension of separation. Unless you and your spouse reach an out-of-court agreement regarding how to divide property or debt before filing for legal separation, your separation could become extended indefinitely. The state does not mandate any period of separation before granting a divorce.
Ultimately, whether to separate legally or file for divorce involves several issues. Even though these two processes are completely different, some couples choose to separate for months or years without filing for divorce at all. The best way to determine what is right for you is to work with a qualified attorney who can help you arrive at the best decision for you and your family.
Your Legal Rights and Responsibilities During Separation
In Florida, legal separation does not create any enforceable rights or responsibilities in the same way that filing for divorce does. However, it can have an enormous impact on other legal issues, including property and debt division, child custody, and child support.
During a legal separation, spouses retain the right to act on their own behalf, but they can still sell property, voluntarily waive alimony, or execute otherwise valid contracts. In addition, legal separations in Florida do not create a specific status regarding property and debt division like a divorce does. This means that while some spouses may agree to divide property in advance of a divorce decree, this does not prevent either spouse from taking possession of communal property items or from increasing the amount of community marital debt.
Alimony is also not applicable during a legal separation and will only be awarded when a divorce is finalized. However, a temporary alimony order can be requested at any time during legal separation and is frequently granted in order to help either spouse with their monthly expenses or to continue living in the "marital home" until a divorce is obtained .
When children are involved, a legal separation can open the door for many child-related issues to be settled. Parents can voluntarily agree on child custody, child support, parenting plans, and visitation schedules. Because these arrangements are typically reached before divorce or paternity action, both parents are able to avoid some of the most common legal obstacles relating to matters involving minor children.
Although legal separation is quite different than an approved divorce decree, it does have a number of significant implications for property ownership, marital debt, and issues relating to children. Many people choose legal separation in order to spend more time thinking about all of the issues involved and coming up with the best long-term solution.
If you are considering legal separation, it is important to consult with an experienced Broward County divorce attorney who can help you understand all of your options.
Suitable Alternatives to Legal Separation In Florida
Aside from a formal legal separation, there are a few other legal options for couples in Florida that do not want to continue living together as husband and wife. One option would be a mediated agreement where you both agree to live separately, you divide up assets and liabilities, child custody and visitation. This is to be reduced to writing and approved by the Court. This is an option provided if the parties are on speaking terms and can agree to co-parent the children in the interim. The benefit of the agreement is that time sharing is spelled out along with several other items and can be honored by both parties and merely a motion to enforce brought if there is a problem.
Another option is a trial separation. During the separation period one spouse can move out and the couple will live separately. They can either agree as to the amount of support (either alimony or child support) that will be provided during the trial separation and who will pay which bills or they can submit to the court the issue as to what is fair. This usually occurs when the parties have a higher net worth and they agree to separate without the people’s court. When the parties know the circumstances of their financial situation and what is owed meanwhile, most people can agree to the terms.
Securing Legal Counsel to Help With Separation
If you are considering a legal separation, it is essential to seek legal advice before beginning the process. A professional lawyer will be able to help you understand the specific legal requirements in Florida. They will also be able to explain what legal separation entails, and the potential impacts on your future. In addition, a skilled attorney will be able to help you and your spouse come to an amicable agreement so that you can both move forward.
When searching for a qualified attorney in Florida , it is important to seek personal referrals. Ask friends, coworkers and other family members for their recommendations so that you can find a trustworthy professional that you feel comfortable working with. Additionally, be sure to ask the attorney how much experience they have handling legal separation cases specifically, as the laws may vary greatly from state to state. Finally, take the time to read up on legal separation within your particular state to educate yourself on what to expect.