Ending a relationship is never simple. Whether you are married or living together as a couple, you must address many issues related to your relationship. Spouses must decide whether to seek a divorce to legally end their marriage. Sometimes, a married couple may consider separating instead of filing for divorce.
This article answers questions about legal separation in Florida.
What Is Legal Separation?
Many states recognize a legal process for spouses to live separately without obtaining a divorce. In states that recognize legal separation, the couple can propose a separation agreement for the court to approve, or a judge may issue an order. These documents allow the couple to remain legally married while living financially and physically separate lives.
The separation agreement and order address issues usually involved in a divorce, including property division, division of debts, child custody, alimony, and child support.
A couple may choose legal separation instead of divorce because they are unsure whether the marriage is irretrievably broken. They may want to work on their relationship but need space to do so.
Other reasons for a legal separation may include:
- Tax considerations related to a divorce
- Protection of retirement benefits
- Continued healthcare coverage
- The impact of divorce on children
- Religious concerns about divorce
A legal separation provides financial protection while the couple considers their future. However, the key to remember is that the couple remains married during a legal separation. Therefore, they cannot legally marry another person until they obtain a divorce.
Does Florida Recognize Legal Separation?
Florida is one of the few states that do not formally recognize legal separation. However, there are alternatives that couples may explore.
Private Separation Agreements
You and your spouse may enter into a private separation agreement detailing the terms of a separation. When executed correctly, the agreement becomes legally binding and can be enforced in court. Your agreement may cover many of the same issues a divorce order would address, but issues related to your children remain under the court’s jurisdiction.
Petition for Support
Florida law allows unmarried and married individuals to file a petition for support. The petition asks the court to order and enforce terms for child custody, child support, and alimony. However, the order will not address property division or debts.
The assets and debts the couple accumulates while “separated” may be subject to property division rules if they divorce.
Postnuptial Agreement
A postnuptial agreement may be a better alternative because it can include more terms than a petition for support.
A postnuptial agreement can resolve issues related to:
- Property division
- Who has possession of the marital home
- How debts will be divided
- Stipulations regarding assets accumulated after signing the agreement
- Whether a spouse will receive alimony, and if so, the terms for spousal support
- Matters related to estate planning, retirement, taxes, and inheritance
Even though you might decide to include terms in the postnuptial agreement regarding custody, child support, and visitation, the court retains jurisdiction over these matters. Judges will void any terms that are not in the children’s best interests.
Once you sign a postnuptial agreement, it is a valid legal contract the court can enforce if it meets the requirements. A postnuptial agreement must:
- Be in writing, signed by both spouses
- Be entered into voluntarily by both spouses
- Be fair to each spouse
- Include a complete financial disclosure to the other spouse
- Be signed by two witnesses if it includes testamentary provisions
Marital agreements must have consideration to be valid. The marriage is the consideration for a prenuptial agreement. However, the parties are already married when they enter a postnuptial agreement. Therefore, the parties must agree to another type of consideration, such as waiving alimony for another form of payment. A spouse could waive their interest in a family business for a lump sum payment.
Should Couples Live Separately in Florida While They Are Still Married?
Even if you have an agreement to live separately, doing so while you are still married could complicate your divorce. If you do not have a postnuptial agreement addressing property, any assets accumulated after you separate could be subject to property division.
Also, if a woman has a child while living separately, the husband is presumed to be the legal father. Therefore, the parties may need to file a paternity action to determine which man has parental rights.
A spouse may move out of state, making the divorce process more difficult. Since Florida is a no-fault state for divorce, adultery is usually not an issue in a divorce. However, a spouse may allege that the adulterous spouse used marital assets for the affair, which could impact property division.
In some situations, circumstances may outweigh the potential issues of living separately before a divorce. For example, in cases involving domestic violence, a spouse may need to petition the court for an order to have the abusive spouse leave the home. The spouses would then live separately until the divorce is finalized.
Some spouses may benefit from living separately while they are seeking marriage counseling. Continuing to live together could result in arguments that hinder counseling.
When Should I Hire an Attorney for a Separation in Florida?
Deciding whether to live separately and apart while you are still married can be a challenging decision. Each couple and situation is different. Therefore, what works for one couple may not work for another.
If you have questions about separation in Florida or filing for divorce, contact us for a free consultation with an Orlando divorce attorney.
Contact the Orlando Child Custody Lawyers of Conti Moore Law Divorce Lawyers, PLLC for Help Today
Contacting an Orlando divorce lawyer can help you determine the best path for you and your children. An attorney will explain Florida laws and how they apply to your situation. They’ll discuss your legal options and the pros and cons of various choices.
For more information, contact our experienced Orlando child custody lawyers at Conti Moore Law Divorce Lawyers, PLLC by calling (407) 831-0203 to schedule a free consultation.
We serve all through Glenn County and it’s surrounding areas. Visit our office at:
Conti Moore Law Divorce Lawyers, PLLC
815 N Magnolia Ave Suite 100
Orlando, FL 32803
(407) 831-0203