Florida Legal Separation vs. Divorce
A common point of confusion for people is the distinction between legal separation and legal divorce, as part of the process of breaking up a marriage. People often think of legal separation as an alternative to divorce, but in the state of Florida, there are no provisions for a legal separation independent of a divorce filing. This is because Florida faults every married person with a dissolution of marriage until actions to amend the circumstances or status of the marriage are successfully taken. The first action is a divorce.
In fact , the closest thing to a legal separation under Florida divorce law is a set of motions that you can file in the county where your spouse lives to obtain a football-sized bundle of details about your partner’s finances, assets, employment and the like. You can then use this information to create a petition for divorce that clearly indicates the terms you are seeking. Anyone accused of threatening or abusing their spouse can’t be forced into a legal separation or divorce until an injunction goes into effect, so these circumstances can be an exception to the general rule of automatic dissolution of marriage in Florida.
Alternatives to Legal Separation in Florida
Couples that are legally and emotionally separated but not yet divorced may be able to find what they are looking for via other options. In this state, you may file a Separation Agreement with your own terms or via a Consent Order. In Effect paragraph 20 of the Florida Family Law Rules the court is instructed to accept agreements by former spouses in relation to children which concern parental responsibility, timesharing, child support and health insurance for children as well as spousal support demands. This is not automatic; negotiation is critical to a couple arranged to the end they have mutually decided upon.
There is another tool the parties can use: Temporary Orders. A temporary Relief Order will provide some stability in the midst of an uncertain future that may result in a divorce or separation. Domestic Relations Rules 12.611 and 12.613 govern Temporary Relief Orders in Florida. Temporary Relief Orders are entered by the court to maintain the status quo, preventing either party from taking unilateral action in matters such as parental responsibilities or financial status while the actions are pending. The Temporary Order is effective until the final hearing, an opportunity to "reset" if you will the score in the interests of both parties, or until the court decides on a different course of action. Whether it is a Temporary Relief Order or Separation Agreement, either can help both parties decide on the character of the separation, including child custody and support, alimony, property division and – importantly – the maintenance of the household where the children reside. The tactics of all parties should focus on the decisiveness of an interim order or agreement until final decisions are made. Failure to be wise in your choice of approach or meddling in areas that are a matter of principle may be seen as unhelpful and costly to a bitter position later on, in the event the marriage cannot be saved.
Separation Agreement in Florida
The groundwork for a Florida Separation Agreement is usually laid through informal negotiations, where both parties express their needs and concerns. If the parties are in agreement as to the terms of separation, they often seek the advice of an attorney who can draft the written agreement. If the parties are unsure of some of the terms of the separation or unable to cooperate, there are a couple of ways to address this situation. Many times, the separation agreement is the permanent settlement, so it’s important to carefully consider the obligations and agreements involved. The parties may be able to agree on certain issues but not all. In this situation, simplistically, a final divorce order may incorporate the terms of a separation agreement, or the requirements of a ‘Judgment of Dissolution of Marriage’ may be satisfied by following the terms of an unincorporated separation agreement. When one party wants to establish the terms of the separation and the other party is unwilling to cooperate, that party may either file a Dissolution of Marriage with the court or utilize the services of a mediator to help reach an agreement. A mediator can facilitate the development of an agreement by working through various issues to get a clearer understanding of the needs of both parties. It is recommended that the terms of an agreement be fully disclosed, as well as the assets of each party. This includes disclosing all bank accounts, real estate, possessions, businesses, and any other assets or liabilities. The agreement may encompass the division of assets and liabilities, child support, alimony and other financial and family concerns.
The Effects of Living Apart in Florida
In the state of Florida, married couples who choose to live apart may be subject to an unusual interpretation of spousal support law. According to Florida Statute 61.09, if you and your spouse are legally married and you can prove to the court that you have legally sequestered yourself from the relationship for one year (or longer), there is a high probability that you will be granted permanent alimony after your divorce. This is regardless of whether your spouse has been contributing financially to your living arrangements during your separation. Thus, even if they are providing you with support for food, clothing, and shelter, they could still be subject to paying long-term alimony at the time of the divorce.
Laws vary widely by state. In the state of Florida, spouses who live apart could potentially be impacted by these laws. For example, Say you separate from your spouse and move to a different location , claiming financial independence from him or her. After one year of living apart, you could become eligible for permanent alimony. Even if you are currently employed and choose to carry a full load on your own, the state does not expect you to completely support yourself. Even if you have a steady income, you could be eligible for alimony, thus putting your spouse in the position of writing you a check substantially similar to or comparable to the amount you could have potentially received had you lived together.
If you have questions about the impact of living separately from your spouse in the state of Florida, you should discuss the current circumstances of your marriage with experienced legal counsel. They can help guide you through the issue of alimony and what it means for you both now and in the future, as well as whether or not it is in your best interest to pursue other legal options such as divorce.
Consulting a Family Law Attorney about Separation
It is usually in your best interest to consult with an experienced Florida divorce attorney when you are considering a legal separation. An attorney has the expertise to help you navigate the complex laws surrounding legal separation, and they can draft a separation agreement that protects your rights and interests. In addition, an attorney can help you break the news of separation to your spouse in a way that reduces conflict and the potential for litigation.
If you want to pursue a legal separation, your lawyer can draw up an agreement that divides your property and debt according to Florida’s community property rules (or without a division if you prefer) and outlines how your obligations for spousal and child support will be handled. Legal separation is not a "trial separation" – it is a formal legal proceeding that typically requires filing for injunction relief under Fla. Stat. § 741.30.
If children are involved , an attorney can provide guidance on child custody and how to discuss the separation with your kids. A lawyer can also help you pursue temporary support that lasts until you get a final divorce. Your spouse may be paying this support, and it is crucial that you protect your right to this support throughout the division of assets and debts.
By hiring a lawyer to help you with your separation, you gain a clear picture of your rights, obligations and options moving forward. You can focus on your next steps and work towards a permanent legal separation or divorce without the stress of trying to figure everything out on your own.
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