What is Legal Separation
The term legal separation in Florida is commonly used, especially among persons of a certain generation. It is not an option recognized in Florida. Even though many people are searching for information on legal separation, what they really want is a divorce. Once they have the information about divorce, they still ask the question about how to become legal separated.
Because legal separation does not exist in Florida, a couple would have to obtain a divorce. But, some people want to continue living in a marriage, yet they want to be able to legally divide their assets. This is called a Divorce from Bed and Board in Florida. The Court can order a divorce from bed and board, and this would mean that you are still legally married; however, you would have to live separate from your spouse, you would be entitled to separate property, and it would protect your property rights because ultimately you can file a divorce.
Why would anyone want to be married, yet separated? This may be due to religious reasons or economic reasons. One or both spouses may not want a divorce, even though they do not want to live together . A legal separation, or divorce from bed and board, may allow the parties to have a legal remedy in the event there is a dispute later on the assets of the parties and how they are to be divided. Legal separation, in Florida, really only serves as a means to divide property, not resolve issues regarding alimony, child support and child custody.
A big myth about legal separation is that the parties cannot get a divorce once they are legally separated. The separation does not dissolve a marriage and it does not preclude the ultimate end of a marriage. Ultimately, the parties can change their minds and still obtain a divorce, even though they were initially married.
Legal separation does not exist in Florida, but until alimony reform occurred in Florida in 2013, there were attorneys who would file a legal separation, without obtaining a divorce on behalf of their clients. The attorneys would refer to this as "a divorce without a divorce". Now, that the permanent alimony laws in Florida have been amended, these attorneys have now changed their views on legal separation and "divorce without a divorce" and now refer their clients to the legal divorce route and not legal separation.
Florida’s Position on Legal Separation
Florida does not officially recognize legal separation. Your divorce attorney may offer to prepare a separation agreement and will advise you that such an agreement may be useful to address limited issues if you and your spouse have already agreed to proceed with a divorce, or if you want to keep your current legal status but live apart for some reason.
In lieu of formal legal separation, you and your spouse may enter into a written agreement that addresses issues such as property, debts, division of household goods, who pays for what bills, and who has primary custody of any minor children. This agreement does not need to be approved by the Court, but may be helpful if you and your spouse do not want to go through the hassle of a divorce immediately. This agreement would be enforceable in Florida through a court order, but the terms of the agreement would control so long as they do not violate public policy or laws of the State of Florida.
Another option is a "separation in fact" where you move out of the marital home without entering into a written agreement with your spouse. In this instance, you would be expected to pay your own attorneys’ fees and costs should a divorce be filed and with Council for the Court if the fees are awarded.
Legal Separation Alternatives in Florida
In many cases, however, there are alternatives to a legal separation that provide similar protections to those offered by a divorce decree. For example, when a couple chooses either an informal or a formal (written) separation agreement, they can determine for themselves how their property will be distributed after the marriage formally ends. A seasoned Florida attorney can help ensure that these agreements are legally binding. A trial separation also allows a couple to live apart and to divide living expenses, without ever having to file for legal separation. While trial separations can be emotionally healthy for couples who identify a need for space, this approach continues to carry the risks associated with remaining married. When a couple is still legally married, one spouse can remain responsible for the actions of the other. This can lead to financial and emotional difficulties if one spouse uses the separation period as a means of avoiding legal and financial responsibilities.
Separation Agreements: The Essentials
When a husband and a wife or married persons of the same-sex separate, it may not be in their interest to divorce right away. For a variety of financial reasons, some spouses prefer to separate and live apart for a period of time from their spouses. They never completely end the marriage. Legally, if the parties have a minor child or have been married for at least 10 years, getting a divorce could mean giving up important rights to part of their spouse’s retirement assets. Today, many people separate rather than divorce for years. There are also other culturally significant reasons for remaining married.
When parties separate, they typically enter into a written agreement that splits assets, debts and other items relating to their child(ren) and/or otherwise resolves issues in their marriage. The parties on their own negotiate the agreement, but they also have counsel assist them with drafting the terms.
The separation agreement is a legal contract between the two parties. It becomes enforceable in court. The issues typically covered in a separation agreement are equitable distribution —how the parties will split their assets and debt, child custody, time-sharing —another term for visitation, and spousal support.
The Impact of Separation on Children and Family
In addition to the personal and financial challenges of separating from a spouse, parents face the unique difficulties of separating from their life partner and how they manage the responsibilities of parenting. In some cases, one (or both) partners did not expect that their marriage would end and may have post-separation concerns about emotional and logistical impacts on children or feelings of guilt about not having recognized the marriage was in trouble.
Children can experience the emotional pain of seeing their parents separate. In some cases, this is manifested in the form of behavior problems, particularly amongst younger children who may not have the maturity to understand that relationships change. When it comes to logistical impact, there are some different ways that parents can separate.
Some couples, with the help of a qualified attorney, can agree to a legal separation by entering into a marital settlement agreement. This is a written contract that outlines the specifics of the separation, including the division of assets, allocation of parenting time, and financial obligations for both parents during the period of separation . Although agreements related to the division of assets cannot be legally binding until the divorce action is finalized, regularizing the terms of separation can provide peace of mind for both parents.
Florida is one of the few remaining states that do not have a legal separation action. However, many couples who wish to separate will opt to live apart without a separation agreement. This mutual decision is certainly acceptable in Florida law and can be advantageous from a psychological point of view, as both parties agree that divorce is necessary and under the circumstances, a period of separation may be helpful to finalize the details of the divorce action.
If parents decide that it is best to separate and file for divorce, they can help children adjust by being open and honest with them about the issues in the relationship and how separation will likely benefit everyone involved. By providing children with the time to adjust, many parents can minimize the negative impact of separation and divorce. If a parent needs additional support, counseling services can help individual family members and the family unit recover from the traumatic events leading to the decision to separate.
Legal Implications and Guidance
It’s imperative that you know your rights and obligations under Florida law when it comes to legal separation or divorce. The basis of the separation agreement, where one partner remains in the home while the other moves out, largely depends on there being no family law litigation involved on another legal issue – typically a divorce proceeding. Once the litigation is started, the parties are now legally separated as the court will divide all property according to state law and award alimony and child support. Where a couple files for legal separation, however, there’s no family law case before the petition (such as the filing of a divorce) and therefore, the separation agreement basically creates a contract between the two parties.
This is an important distinction that cannot be over-emphasized. While you’re not required to have an attorney for a legal separation agreement, having one can help you protect yourself and your property. If you need help with a separation agreement or determining the next best steps to take in your situation, I can help. As an experienced family law attorney serving central Florida, I’ve been providing honest advice and knowledgeable representation in regard to all realms of family law for many years.
Conclusion: Informed Decision-Making
Deciding whether or not to separate or divorce can be one of the most difficult decisions many people face. If you have been separated for a long period of time (a year or more), it may make more sense to get divorced instead of entering into a legal separation agreement . Again, every household and marriage is different, and there is no cookie-cutter approach. Get tailored advice by speaking with a qualified and knowledgeable attorney.