Important Facts About Legal Separation in Florida

What Is a Legal Separation?

There isn’t technical term per se in Florida law called "legal separation." In general, people use the term "separation" to refer to the period of time in their lives where they start to physically move on from their spouse and their life together.
Or perhaps they are not yet ready to take the step of a divorce. Or perhaps their religion forbids a divorce.
When someone refers to "legal separation," they generally mean a process known as an "action for temporary support with leave to commence suit for permanent alimony and for equitable distribution of assets."
Most people tend to think of legal separation as some sort of middle ground between a marriage and a divorce. A divorce has many implications in the eyes of the law , and if one party is not ready to sever those ties just yet, so the term "legal separation" comes into play. "Legal separation" essentially means that the couple is still legally married, but are living separately. Neither party can remarry, nor can they change their legal status.
If one or both spouses does not want their divorce or their finances to be public record, they may seek for it to be resolved under Florida Statute 61.071, the "Uniform Collaborative Law Act." This can preserve the confidentiality of the parties and their finances during the process.
Please note that in the State of Florida, the title of "separated" in not based on the physical residence of the two parties, but merely the fact that they are living apart.

Florida’s Perspective on Legal Separation

Florida law does not have any statutory provision that permits a legal separation. It also has no form for a legal separation, nor are there any rules of procedure for it. There is not even a process for an official divorce case with the intent of becoming "legally separated" during the period before the case is final.
Instead, you and your spouse must separate informally. If you want to start the process of divorce or legal separation, you must file for divorce.
While "legal separation" does not exist, spouses may enter a separation agreement, which is a legally binding document between them. However, it is essential for legal separation that you work with a family law attorney. Without an attorney’s careful legal assistance, a separation agreement could be canceled because it violates state regulations.
Because the law does not give consideration to legal separation, legal separation is not included among Florida’s Uniform Motion Practice.
Florida’s Courts have not really carved out a legal doctrine for legal separation. It has not been recognized by court decisions in Florida. However, the Florida case of Campbell v. Campbell 454 So. 2d 60 (1984) declared that a legally separated spouse is entitled to alimony.
For many of the same reasons that domestic violence injunctions are necessary to maintain moral standards, as opposed to being court-ordered divorce judgments, a legal separation is no longer favored upon by the legal system.
The first reason is that the family law system has become more focused upon individual autonomy. Courts do not just consider money in doing justice. Instead, the courts also factor in emotional and psychological aspects. They focus on autonomy, separate identities, and empowering each individual to resolve disputes between themselves.
The courts also do not want to take on cases that are false or frivolous. Individuals may think that legal separation is an easy way to get a divorce. But relationships have rarely been just fine. Legal separation allows individuals to open doors that might interfere with the capacity to reconcile.
Therefore, with many issues involved with separation agreements, it is often best to have those issues clarified in a divorce case, rather than struggling with applications of general contractual law in the family court system.

Alternatives to Legal Separation in Florida

Since legal separations are not recognized under Florida law, if you and your spouse feel that you need some space or are contemplating divorce, there are several alternatives for you to consider. The first option is drawing up a marital settlement agreement. While this is not legally binding until approved by a judge as part of a divorce settlement, it can provide you and your spouse with an agreed-upon framework for dividing the items you jointly own and coming to other agreements about ongoing issues, including alimony and child support.
Another option is a postnuptial agreement. In many ways, this is similar to a marital settlement agreement, but it is drawn up while the couple is still living together. This document will cover nearly all of the same considerations as a marital settlement agreement would.
If you and your spouse cannot agree on the terms of a separation agreement, there is still the option of requesting temporary orders from the court. These orders—also sometimes called pendente lite rulings—are temporary agreements related to spousal support, child support and custody and visitation arrangements that remain in place for the duration of divorce proceedings. These orders will be replaced with more permanent orders set forth in a divorce decree once the divorce is finalized. However, these requirements must be upheld until then.

Reasons Couples Choose to Separate

Couples may opt for a separation arrangement rather than a divorce for several common reasons. If the relationship is far from perfect but they both believe there may be a path to reconciliation, why pursue a legal separation rather than a divorce? A trial separation can help couples identify whether, apart, they are better off apart or if they want to reconcile.
Other reasons for a separation rather than a divorce include: Religious Values – There are some religions that do not condone divorce and will not recognize a divorce occurring before certain conditions are met, such as the complete and utter dissolution of the marriage, which may relate to community property . Financial Considerations – In some cases, a couple may want to keep their finances intact for the purposes of financing children’s college education or continuing to pay down a mortgage bearing a relatively low interest rate. The couple may have accumulated a low-interest 2nd mortgage on their home or be carrying other debt with a reasonable interest rate. Rather than liquidate accounts in order to pay off credit accounts, it may benefit the couple to separate from one another rather than legally divorce.
One spouse may also have considerable income that may result in a significant difference in spousal support should a divorce occur. A trial separation may allow that spouse to remain in an ‘in-house’ arrangement until they are able to reduce their income to a more equal level.

How Legal Separation Affects Finances and Parenting

The decision to legally separate can create many unanticipated consequences. Even in states like Florida, where there is no formal status of "legally separated," the legal separation process can affect everything from child custody and visitation to child support obligations and debts.
Legal Separation on Finances
In most states, you’re not legally bound by a formal legal separation. However, once you’ve established that there’s an irrevocable breakdown of the marriage, you can move onto the next phases of divorce: Discovery and negotiation of a settlement agreement. Unlike an informal separation, where you’re not as obligated to provide financial information to one another, discovery in a legal separation proceeding is essential. Both parties should read The New Bible of Divorce and Family Law and the FAQ named, "How Do I Expose Unreported Income of My Spouse (The 2011 Version)?" The process of discovery obligates both parties to be upfront with each other in regard to income, assets, liabilities, and debts.
Fortunately for the lawyers and the courts, some separation agreements include a statement signed by both parties that they’ve disclosed all assets, income, and liabilities. Many lawyers will agree to forego discovery when there’s a comprehensive separation agreement signed by both parties who acknowledge this fact.
Legal Separation and Child Support Payments
If you’re considering legal separation as an alternative to divorce, there are a few factors you need to keep in mind. For example, in states like Florida, you’re still married to your spouse, so you won’t be legally able to remarry until you get through the divorce process. That means that you are still bound to joint taxation and debt until the divorce is finalized.
In addition, if you have minor children, you may be obligated to pay child support to your spouse in lieu of alimony if you were the primary breadwinner. Child support generally lasts until the child is 18 or finishes high school. In the meantime, the custodial parent is legally responsible for raising the child on their own, which provides an additional incentive to work on the possibility of reconciliation.
Legal Separation and Parenting Time
A legal separation doesn’t necessarily mean you get more parenting time with your children. Even if you’re separated, you need to continue adhering to your existing work schedule in order to earn a "liveable wage" and continue paying your bills. During this time, where you may be negotiating a settlement agreement, you could also be living on a reduced income. While this is an excellent opportunity to show the court how much you truly enjoy spending quality time with your kids, if you’re working more as a result of the separation, that standard parenting time could actually work against you.

How to Get Legal Protection by Following These Steps

Legal separation, although not formally recognized in Florida, is a situation where a couple lives apart to address marital issues without delving into the divorce process. In cases where a divorce is inevitable, a legal separation can help determine and segregate joint property and liabilities for equitable distribution in the event of a divorce. It can also protect the legal rights of individuals.
Typically, a legal separation focuses on three important aspects of a marriage in Florida: alimony, child support and payments of debt. A legal separation can be a great answer for people who have never married but now live in a true marital relationship, or families who are experiencing issues around alimony or child support.
Legal separation can be helpful in the following ways:
If an adult couple requires legal separation, the most helpful step is to obtain proper legal advice about separate and joint property and liabilities. Consulting a qualified professional is advisable to learn how Florida law deals with such issues, and to ensure that all areas have been covered.
Once each party understands their rights and obligations under Florida law, the next step towards legal separation is creating an agreement. In some cases, an agreement called a "Mediation Agreement" can be entered upon to help define issues of support, property and liabilities related to the separation. The agreement should address concerns such as support and custody of minor children, the wife’s last name, property and debt division and related payments, plus any other matters related to each individual family situation.
If either party would like the Separation Agreement approved by the court so that it becomes a court order, they must file a Petition for Separate Maintenance . The Petition must include a copy of the Agreement and a Uniform Child Custody Jurisdiction and Enforcement Act Affidavit. Domesticating a Separation Agreement has the added advantage of ensuring that any future violations of the Agreement are more easily enforceable in court because the Agreement will have become a court order.
After filing the Agreement and Petition with the court, a temporary hearing to address the terms of the separation can be requested. A Marital Settlement Agreement or Simplified Dissolution of Marriage via waiver of final hearing, and a Final Judgment, will be required to provide, establish and memorialize the Separation Agreement with the Court, if the parties reach an agreement.
An option for additional help with separation and legal agreements is mediation. A mediator is a professional trained in negotiation techniques that can help the parties address and resolve specific issues. The mediator may be a divorce attorney, therapist, psychologist, clinical social worker or other trained facilitator. Mediation can be beneficial to work with keeping costs down, when communicating with your spouse about issues may be difficult or when separating assets and debts proves to be challenging.
Legal separation is a tool for Florida couples who want to divide property, debts and liabilities, and determine alimony and child support matters, even though they have no intention of getting divorced. Although there is no formal legal definition of legal separation in Florida law, the agreements drafted between parties can be significant in moving forward towards either a divorce or resolution of marital matters.