File for Legal Separation in Florida

Deciding to end a marriage is an important and sensitive decision. In the state of Florida, the divorce rate tends to be higher than in other states. While Florida does not recognize legal separations, there are still options for couples who may choose to separate instead of getting divorced for various reasons. Legal separation is a court ordered arrangement where the married couple lives apart and lives separate lives while still legally being married. This is a step between marriage and divorce that a couple may wish to take. Starting the process of a legal separation in Florida is different than in other states due to Florida courts not formally recognizing a legal separation.

There are different reasons for why a couple would want to separate but not divorce. This may include:

These are just a few reasons why a couple may choose to separate instead of filing for divorce. Separating can be a good option for couples that are not sure if they want to get divorced. Some couples decide on a trial separation before deciding if they want to get divorced. A trial separation is not recognized by the courts but may be used to determine the date of separation if the couple decides to get divorced later on. While separated, each spouse can engage in other romantic relationships but are unable to get married to another person.

There are a handful of states that do not formally recognize legal separation, and Florida is one of them. However, this does not mean that the only option is divorce. There are different legal avenues couples can take, especially when it comes to alimony, child support and visitation rights. Legal separation and divorce provide financial protection for both parties. Since there technically is no legal separation in Florida, any assets accrued during the separation are still considered marital assets. This includes wages, property, investments, and also debt. It is very important that both spouses understand this when separating in the state of Florida. If there is no agreement in place and one spouse racks up thousands of dollars in credit card debt, the other spouse may be responsible for it.

Postnuptial Agreements in Florida

One way a couple can get a similar result of a legal separation in Florida is via a postnuptial agreement. This is an agreement that is signed after the parties are already married. It is a way to pause if the couple is thinking about getting divorced. Similar to a prenuptial, a postnuptial agreement looks to set the terms of a divorce or separation rather than having a judge preside over distribution of assets and alimony. If reconciliation fails and the couple goes through with the divorce, the terms will typically be fairer since they were stipulated ahead of time by both parties. However, this is not always the case, so it is important to have the postnuptial agreement looked over by an attorney. Postnuptial agreements can have a negative connotation as some people think they encourage divorce.

Many times, couple will enter into a postnuptial agreement as a way to get financial affairs in order before going through divorce proceedings. It also is a way for couples to feel like they tried every possible avenue before getting divorced. A postnuptial agreement must be entered voluntarily by both parties. It cannot be signed under threat, coercion or misinformation. Both parties should work together to determine the terms of the postnuptial agreement. The couple can decide how to divide up existing assets and decide that any assets accrued after the date of the postnuptial agreement are nonmarital assets. It is important to collaborate on this agreement with an attorney to avoid the prenuptial agreement being challenged in the future.

These are some things you may want to address in the postnuptial agreement:

Florida law requires a postnuptial agreement to be in writing and voluntarily signed by both parties. There must also be full disclosure of all assets by both spouses. One spouse hiding assets from the other is a common reason postnuptial agreements are challenged in court. The court will usually uphold a challenge if it is found that one party knowingly hid assets from the other. The agreement must also be considered fair. If the postnuptial agreement is very blatantly favoring or unjustly punishing one party, it may not be enforceable.

One important thing to note is a postnuptial agreement cannot dictate child support or custody matters. The couple can come up with a parenting plan, agree and sign on it, but Florida courts will always have the final say over custody matters. The court will look at what is in the best interest of the child, which may be different than what is in the postnuptial agreement. Both parties must consider this an informal parenting plan. This mean, unfortunately, a postnuptial agreement is not as comprehensive as a legal separation in Florida, but it does provide each spouse some degree of protection.

If there is a significant disparity in income between spouses, or one spouse does not feel comfortable entering into a postnuptial agreement, couples may want to choose a different legal avenue for separating. One spouse saying they did not understand the agreement but still signed it may still mean the postnuptial agreement is enforceable.

Other Options for Legal Separation in Florida

Separation agreement

At any time, couples can decide to separate and live apart while still remaining legally married without having to notify the courts. If both spouses have separate residences, separate expenses, and do not have any joint financial accounts, the couple will be considered separated. The court does not approve or deny this agreement and cannot resolve disputes. Since this is not court approved, if one spouse does not fulfill their part of the agreement the other spouse's only option may be to file a lawsuit.

Petition for support

A spouse can go to the courts at any time to ask for child support and/or spousal support from a spouse who leaves the marital residence without having to file for divorce. This is called Petition for Support Unconnected with Dissolution. The party asking for support must be able to prove to the court that the spouse has failed to support the family (the other spouse and/or any children). Typically, the courts will grant child support petitions, but spousal support petitions are more difficult to obtain when the couple is still legally married. If both parties are entering into these agreements voluntary, the courts will almost always sign off on it. When petitions for support become contentious is where the petitioning spouse may have more difficulty obtaining support. An example would be if both spouses cannot come to an agreement on alimony amounts.

Limited divorce

A limited divorce acts similar to a legal separation in Florida. This allows couples to maintain benefits like health insurance and Social Security spousal benefits. A couple that enters into a limited divorce can also file taxes jointly. The courts can help resolve issues with child custody, alimony, and property disputes. This is also referred to as a bifurcated divorce. Spouses seeking a limited or bifurcated divorce must choose one of these three reasons: cruelty, desertion or voluntary separation. A limited divorce is not an absolute divorce, meaning neither spouse can legally get married to someone else. This also means that if the spouses reconcile, the divorce has not been finalized and can easily be rescinded, unlike an absolute divorce.

While there is no such thing as formal legal separation in Florida, married couples do have options for separating without divorcing. It is much easier to go through this process for spouses that are both voluntarily agreeing to the separation. When there are children involved, the process of separating can get more complicated. Our easy-to-use forms can help start the process of separation.

Sources :

Florida Court - https://www.flcourts.org/

Florida Family Court - https://www.flcourts.org/Resources-Services/Office-of-Family-Courts/Family-Courts

Florida Divorce Forms - https://www.getdivorcepapers.com/state/florida-divorce-forms-online

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