Legal Separation in Florida
Legal separation as a legal status is unknown in Florida, and this is actually not unusual. The majority of states do not recognize a form of legal separation, which is differentiated from a trial separation under which a married couple lives apart without actually terminating their marriage. A big reason for the absence of legal separation laws for married couples is the lack of legal meaning. Legal separation is not a divorce but rather a specific agreement made between a couple to resolve issues while remaining married.
A legal separation agreement defines the obligations and responsibilities of each spouse during that period and specifies various ways they will address issues such as debt, children and spousal support. Legal separation is often used when both spouses are not in agreement over marriage dissolution , or when they are unwilling to divorce. Maintaining the status of a legal separation allows for reconciliation and it may also be required for religious reasons in some faiths. While in a legal separation, a couple is still considered married in the eyes of the law.
Consequently, Florida does not currently offer a legal separation status. Legal separation does occur within the state as a result of a limited divorce however, but it is not recognized by statute. In limited divorces, spousal support is available as well as division of property and debts. However, child custody and child support cannot be addressed, nor can the court resolve issues of marital misconduct. Moreover, a spouse in a limited divorce lacks the right to remarry and the divorce has no public notice. When parties reconcile, their order is vacated, but if the final divorce occurs, the limited separation can be converted into an unlimited one.
Disadvantages of Legal Separation in Florida
A couple in Florida will not be allowed to get legally separated before divorce because Florida does not have legal separation. However, there are alternatives out there which might serve as a substitute of sorts for legal separation within this state.
For example, after a couple decides to separate, they can execute a postnuptial agreement. Such an arrangement outlines precisely how the couple and their properties, assets and any children will be treated. They can decide to separate for a few months or even a few years and be completely free – no divorce is necessary until they decide to follow through with the divorce process and move on. This transactional decision – if they take it seriously – is actually legally binding.
The positive aspect of a postnuptial agreement is that both spouses have time to think things over. If both of you decide at the end of the agreed time to make things work, you are completely free to do so. Most importantly, a postnuptial agreement is essentially the law of the land between the separating spouses—a judge will have no jurisdiction over it.
A trial separation can also be arranged as an alternative. This is not legally binding and can happen if a couple has been living together and decides to live apart for a period of time.
As another example of a "separation" option, some couples choose to get a legal separation in another state. More specifically, representation would need to occur in the other state for a legal separation. The couple, however, would not be able to come back to Florida with this legal separation.
Legal Separation Considerations When Living Apart
A couple might choose to start living separate lives in the same residence. When this occurs, the law steps in to determine which bills are to be paid by whom.
If there are children involved, the parents have to develop establishing a parenting plan and child support. Additionally, the spouse requesting child support or alimony can only be granted it if he/she is not living with the other as husband or wife. Because there is no law in Florida to legally separate a married couple, couples are advised to go through the process of divorce instead. The reason for this is because the Court has jurisdiction to award certain relief only if both spouses meet the requirements for a divorce.
The Florida Divorce Court can divide property and debts even where the parties have lived apart before the divorce action was filed. Without a divorce in Florida, a spouse even unaware about a property interest may find himself/herself at a disadvantage due to the other spouse’s failure to disclose the property in the proceedings. By formally filing for divorce, both parties are protected by the law.
Divorce vs. Legal Separation While Living Separately
Although most married persons living apart intend to get divorced, in Florida, living together without being married does not in and of itself mean that the parties are reconciled or that the parties’ behavior during marriage has changed in any way. The fact that one spouse or both spouses live apart from the other is evidence of at least one spouse’s desire to end the marriage. However, living even in separate places does not prevent either party from asking the divorce court for relief from their spouse’s behavior. For example, if a husband continues to sell his assets and deprive his wife of money for the spouse and children’s expenses, the wife’s decision to live elsewhere so as to be self-sufficient does not prevent her from getting a temporary injunction from the court to prohibit the wife from selling his assets and/or transferring them to a relative in order to hide them. In other words, the divorce court can still provide protections to both spouses and their children during the pendency of divorce proceedings regardless if the parties live apart or together, even in the former matrimonial residence. However, where the spouses live together while they are separated, the court may be inclined to give a party longer periods of time to move out of the marital home.
Alternatively, the parties may constitute a "trial" separation of indefinite duration. Traditional trial separations involve living apart for months or years without applying for a divorce; however , the parties may determine whether to marry again or to get divorced after a long period of time of living apart. These types of separations are becoming rare, but when they do occur they are generally associated with the parties’ religious beliefs. One parent with the children may live in the former marital residence and the other parent may live with relatives elsewhere or even rent a place without necessarily asking a court for a separation agreement or temporary orders. When the parties do not ask for any court intervention, they may make financial and custodial decisions about their children and themselves separately. A traditional separation also has the disadvantage associated with the sale of a house: one spouse is usually obligated to pay the mortgage, taxes, and repairs while the other spouse has a right of occupancy in the house. If the residing party refuses to pay the mortgage or other expenses or if the parties cannot agree which spouse should pay the house expenses, the non-residing spouse may need to file an Emergency Motion with the court. Sometimes the court will appoint a receiver to manage the house until the divorce is finalized. However, unlike the modern separation which is prompted by the divorce process within the meaning of F.S. 61.09, the law does not distinguish between the parents as custodial and non-custodial and does not require them to exchange financial disclosures, as parents share different living expenses.
Protecting Your Rights While Separated
While legal separation is not specifically recognized in Florida, it is still possible to lawfully separate from your spouse for a period of time. Whether you choose to physically separate from your spouse or are forced to do so if you feel that your safety is threatened, there are a number of steps you can take to protect your legal rights during the separation period.
Writing down every incident, including dates and times, can help you to get important information on record before a divorce or separation occurs. A written log can help you build a compelling spousal support or child custody case.
If you are preparing to permanently separate from your spouse, there are several steps to take to protect your finances. It is imperative that you close all joint bank accounts and open a new bank account in your own name. This will prevent your spouse from draining your bank account during the separation period. If your spouse does not have a right to your employment benefits, ensure that he or she is removed from your employer’s benefits package.
You may consider sending a letter to your spouse to alert them of your intention to separate. This will put them on notice that, although you intend to live apart, you are not ready to formally divorce. It can also help you formally document the date on which your spouse was informed of your intent to separate.
If you genuinely fear for your safety because of your spouse’s actions, you have every right to change the locks on your doors as well as your car. However, coordinate this process with law enforcement, and take photographs of the old locks as well as the new locks as evidence.
Maintaining copies of all emails as well as text messages with your spouse can help you establish a pattern of antagonistic or threatening behavior. In the event that your separation leads to litigation, these records can help you obtain a court order for your spouse to stay away from you.
If you are separated within a few weeks of filing a petition for divorce, you can request an award of alimony pendente lite. This type of alimony provides you with financial protection from your spouse so that you have the financial stability to move forward with the divorce process.
The information on this blog is not legal advice. You should consult an attorney for specific advice regarding your situation.
When to Consult a Family Law Attorney
Consulting a family law attorney before you separate from your spouse may help you avoid unnecessary problems and lead to a more favorable outcome. As previously stated, the most effective way to glean important information about your options is to speak to an experienced Miami family law lawyer.
Even in uncontested cases people get it wrong. The bottom line: You cannot afford to get it wrong .
Imagine the scene: A few months pass after you separate from your spouse. Your spouse is able to pay his/her mortgage. You are paid out of the house and now he/she decides to stop paying the mortgage on the marital home. What do you do?
Florida law provides you with some remedies that can be very effective in that situation, so long as you act quickly. But, you need to know how to preserve your rights.