What is Legal Separation in Florida?
In the context of Florida law, a distinction is made between an "informal" separation and a legal separation. If the spouses desire to formally separate and establish a plan for child support, time-sharing, health insurance coverage, or who is responsible for certain marital debts, the preferred method of separation in Florida is to enter into a Marital Settlement Agreement which resolves such issues, and to then obtain a judgement of Dismissal and Order of Injunction in the underlying divorce case which memorializes the terms of the agreement.
The term "legal separation" is not a term used under the present dissolution of marriage statute , Florida Statute § 61. The term "legal separation" historically was used to describe a form of judicial relief in which the court could legally "separate" a couple long enough to allow them time to work out their problems. However, the Florida law governing divorce and dissolution of marriage has evolved to such an extent that general authority to separate and enjoin parties is no longer expressly mentioned in the dissolution of marriage statute. Today, our courts have held there is no such remedy as a legal separation in Florida. However, such a remedy could be available as a specific feature of a divorce decree; and a party could seek inconsistent relief in the alternative, under equivalent provisions of the dissolution statute.
Legal Separation vs. Divorce
The primary difference between a legal separation and a divorce is the outcome of the litigation. With a legal separation, the parties are still considered to be married in the eyes of the law. A divorce, on the other hand, severs the marriage relationship and creates a new one. The result is a substantial change in the parties status and with that the duties and obligations of each spouse.
Both a divorce and a legal separation involve the same type of issues. If you have children, it will involve a parenting schedule, child support, and time sharing. The simplest analogy I can use is that a legal separation is like a divorce without a nifty name and a few forms don’t need to be filled out.
The important distinction is the status. The parties are still married at the end of a legal separation. They are no longer married in the eyes of the law when they finalize their divorce. The term "legal separation" is not a term of art but is well understood by the Florida courts to mean a case where one party is seeking a divorce but does not want a final outcome for some reason. Usually, at least in my experience, they want to remain married for purposes of the military or for financial reasons (such as tax status).
How to Form a Legal Separation Agreement
If a couple decides to separate but they do not want to divorce, they can establish a de facto separation agreement between themselves. For instance, one party may move out of the home and the parties follow a plan along these lines (but don’t file court papers): If the parties do not want to separate via a court action, or have decided to separate but first want additional time to work out the details of an equitable settlement, the parties can draft and sign a written separation agreement that sets out the terms on which they will be living separately and splits up their property and debts as they see fit. The parties should outline in detail who is responsible for paying which bills, how they plan to divide their assets and liabilities and how custody of the children is to be split. The parties can also discuss child support arrangements, but in order to establish the guidelines for child support in Florida, the guidelines must be followed, not altered by the parents in their separation agreement.
In some cases, the parties can have the separation agreement entered as an order of court, in which case its terms will be binding on both parties (whether or not the agreement itself would be entered as an enforceable contract), and either party can go back to the courts when the terms of the agreement are violated. This can be useful when there is a problem with one party hiding income.
However, while either parent can have the parenting plan agreement approved as an order of court, it’s important to keep in mind that child support obligations cannot be varied from the statutory guidelines. Therefore, a complete child support calculation must be carried out. If this calculation gives a different amount of child support than what is in the separation agreement, a child support worksheet using the Florida Child Support Guidelines should be attached to the separation agreement to show that the child support amount in the agreement varies from the amount required under the guidelines and that the attached worksheet under time share calculations is correct and sets out how child support is to be computed.
Benefits of Legal Separation
Legal separation can provide several potential advantages over divorce in Florida. For one, with legal separation, your spouse cannot remarry. This can be an important consideration in circumstances where either or both of you have a religious enfranchisement against divorce and remarriage.
Second, in some cases, there are advantages to maintaining insurance benefits. One of the most expensive aspects of divorce is when a spouse is required to begin paying for his or her own health care insurance. For this reason, if you still retain health insurance through your spouse’s employer, this is a strong reason to seek legal separation, rather than divorce, during your divorce proceeding . Of course, the expense of maintaining insurance benefits should be weighed against other financial considerations when making your decision.
In Florida, by statute, a couple must be separated for a period of time during which meaningful efforts at counseling must occur before they can obtain a formal divorce. If you decide to be legally separated (rather than divorced) prior to the expiration of this period, then you can avoid what could be a very lengthy period of counseling and separation, instead moving immediately towards conclusion of your divorce proceeding. This is definitely worth discussing with your counsel.
Legal Separation Factors and Common Concerns
When couples decide to pursue a legal separation in Florida, there are important legal considerations of which they should be aware. In Florida, a legal separation is not considered an official status. Therefore, it is typically a colloquial term used to describe a couple who is separated under Florida law but waiting for the right time to move forward with a divorce. While Florida does not recognize legal separation as an actual legal status, there are various legal considerations that a couple needs to take into account when legally separating from their spouse. Some of these considerations include determining child custody arrangements, dividing community assets, determining how assets will be utilized until a divorce is finalized, and determining alimony amounts.
Separating from your spouse is often one of the hardest parts of a divorce. In many cases, one spouse may experience financial difficulties when separated from their spouse. This financially disadvantaged spouse may struggle to pay for the costs of the divorce and their individual living expenses while trying to retain control of their assets until the terms of the divorce have been finalized. Initially after separation, couples may continue to jointly own a home or car, providing the financially disadvantaged spouse with a place to live and a means of transportation. However, over time, these combined expenses can become unaffordable and problematic. For example, if the couple is no longer living together and the home is still in joint ownership, the spouse who is no longer living in the home will struggle to come up with their share of the mortgage, property taxes, and insurance. These are delicate matters that need to be addressed beforehand in order to encompass the needs of both spouses.
Some other common problems faced by separated couples involve custody issues. Even if a couple decides to resort to marriage counseling during their separation, there may be unresolved marital issues that influence the couple’s decision to separate. These marital problems may lead to constant arguments between the spouses. These arguments can result in a hostile environment for the children, which may lead to one of the spouses preventing the other from seeing their children. In these situations, the couple should look to a mediator for solutions or, at the very least, guide their children on how to adequately communicate with each parent to avoid escalating problems between the couple.
Getting Legal Help
Before taking any action to legally separate from your spouse (file some sort of paper with a Court to become legally separated), you should consult with a family law attorney to really ensure this is what you want. Sometimes separating from your spouse will not solve your problems with him/her. It might be desired in some circumstances, i.e., to work on things outside of the relationship without "living a lie" or to terminate joint debts or stop the accumulation of marital assets. But this is case specific. I recommend to clients to really think on this first to ensure it is the right step for you. If there is any doubt, I recommend that people seek out professional counseling before legally separating, and to always do so before getting divorced. The same holds true for divorce.
There are lots of different aspects to a legal separation that family law attorneys can help you with. A family law attorney can explain and discuss your options, guide you through the process , and ensure that your rights are protected. Legal separation is not recognized in Florida, so its qualities must be gleaned from the rules that apply to divorce. In Florida, a divorce proceeding cannot be filed until after one of the spouses has resided in Florida for six months prior to filing. The requirement for separation really comes with the request for child support. In order to be eligible for child support, one of the parties must reside in Florida, even if it is for a short period of time such as the six months.
When filing for divorce, there are certain documents needed to be filed with the court. These documents are part of the case initiation process and include:
Other documents and disclosure requirements are needed as the case goes on and move forward. Hearing, mediations, exchanging of information, expert reports, etc. all are part of the process. An Attorney can give you the tools and information you need as you navigate the legal separation process in Florida.