Legal Separation In The State Of Florida
In the context of Florida law, legal separation is a status where a married couple remains legally married yet lives separate and apart, either within their home or apart from each other. In situations where a couple is legally separated but not divorced, they are still married. Legal separation is not a formal status recognized by Florida law and does not provide the same spouse status as being formally divorced. In pursuing a divorce (dissolution of marriage) in the State of Florida, one or both spouses must meet the residency requirements, including that the state has had jurisdiction over the parties for at least six months before the filing. In addition, to qualify for a divorce under Florida law, the grounds for the divorce must be established.
Under the legal separation status, the couple may address some of the same issues they would need to in a divorce, including property division, spousal support, child custody, and child support. These issues are also for the decision of a Court in the state where the parties reside at the time of the filing. In this way, legal separation is a bit like divorce, in that issues affecting the marriage and family are being decided. The difference is in the status of the parties’ marital relationship, since the spouses remain married during legal separation. Legal separation is intended as a temporary status, with issues resolved subject to later determination as agreed to by the parties or by decision of the Court.
Some of the most common reasons for legal separation are: financial reasons, based on the inability of a party to financially support themself; personal reasons, based on lack of emotional, sexual, or intellectual connection to the marital partner; health reasons, to protect the parties’ mental or physical well-being; or safety reasons, i.e., due to domestic violence. In Florida, legal separation does not carry with it any third-party implication, including the automatic triggering of other legal rights or obligations. A minor difference as compared to divorce is the nature of the state’s role. In divorce, the issues are not only decided between the parties but also the authority of the state to decide contested issues. The state is typically brought into the proceedings when the divorce has been filed in the circuit court; in the case of legal separation, the state has no such role unless the issues regarding support of the parties, children, or the marital agreement have not been resolved by the spouses themselves .
Florida does have two options for separation if the parties’ circumstances do not warrant the filing of a Petition for Dissolution of Marriage, namely a Marital Settlement Agreement and a Separation Agreement. Under either Agreement, the parties will make decisions regarding their property, assets, liabilities, spousal support, and other issues pertaining to their marriage and the family. If children are involved, these decisions will also involve child support and parenting plans. Neither of these Agreements is binding on the circuit court as would the terms of a final judgment.
In Florida, if the marital separation is intended as a "trial" or temporary status, the parties can enter into a Marital Separation Agreement instead of pursuing divorce. Similar to a divorce, the parties can agree to their own terms for child custody, child support, alimony, the disposition of the marital estate, and so forth. Unlike a dissolution of marriage, a Marital Separation Agreement is not filed with the circuit court and does not require the parties to go through the dissolution of marriage process. In Florida, Moreland v. Moreland, 107 So. 3d 419 (Fla. 5th DCA 2013), the Florida Fifth District Court of Appeal made it clear that a Marital Separation Agreement must be fair to both parties and not unconscionable in order to be held valid by the Court.
Another option in Florida for marital separation is a Separation Agreement in lieu of a Marital Separation Agreement. A Separation Agreement, like a Marital Separation Agreement, states the terms of the parties’ separation. Such agreements give parties with minor children more opportunities to make their own decisions about the terms of their divorce, including the extended time shared with parents. On the other hand, Marital Settlement Agreements are court-enforceable and provide for spousal support, division of assets, debts, and support for the children, among other issues.
Although it is no longer common in the United States or in Florida to seek out a legal separation, the option is there for those who have no desire to pursue divorce for whatever reason. Parties who seek to remain married may have reasons for pursuing a marital separation, including religious or personal convictions, an uncertain time-frame for their relationship, or the desire to discover the effects of marital separation before dissolving the marriage. Given the significance of the issues often involved in an agreement for marital separation, it is advisable that spouses obtain legal guidance prior to entering into such agreements.
How To Get A Legal Separation
The process of obtaining a legal separation in Florida typically begins with one spouse filing a Petition for the Dissolution of Marriage, which is the same document used to initiate a divorce. Unlike the divorce process, a legal separation case does not result in the dissolution (ending) of the marriage. Rather, at the end of the legal separation process, the couple is still legally married, but with a separation agreement that they can either keep as it is indefinitely, or convert into a divorce case at a later date. Because of its reforms in 2013, getting a simplified divorce in Florida can now be accomplished fairly quickly, and thus, a legal separation may not be necessary for couples who only wish to remain married for some extra time.
The process of divorcing a spouse and separating from the marriage may look the same in both a legal separation case and a divorce case, but the one major difference is that after a legal separation is achieved, the couple can technically stay separated indefinitely, while a divorce judgment or order dissolves the marriage and terminates any rights to remain married to one another. Thus, using a legal separation for a few months while a spouse is ill or recovering from an operation, or while searching for a new place to live where minor children can also live and continue to attend school can allow them to stay legally separated without dissolving the marriage immediately.
What Are The Legal Implications And Rights That Come With Separation
Legal Separation in Florida provides no guidelines for the parties or the courts. Separation means different things to different people. For most people, it is an informal separation. For couples with children, they still have to figure out parenting time with their children and child support, but otherwise there are no restrictions on either party. For high asset individuals with wealth management concerns, separation gives the parties both time and motivation to gather financial data. All parties have the opportunity to determine what is or is not a marital asset and which spouse can claim each item at the time of divorce.
Unmarried couples are simply not afforded the same rights as married couples living apart. Unmarried parents have very limited rights in the areas of custody, visitation and child support. Pursuing a claim for child support may be a good starting point. For married couples, child support is determined according to the Florida Child Support Guidelines, which typically requires the non-custodial parent to pay child support, based on their income and the basic living expense of the child or children. Unmarried parents do not have that same luxury. If you are not married and have children and are currently separated from your spouse, you are subject to the rules of state law, which grants the courts total discretion to determine custody, parenting time and child support.
Florida laws also place restraints on the parties during separation in the areas of alimony and equitable distribution of marital assets. In most states, property acquired during the marriage is considered marital property because it was acquired during the marriage and both parties are entitled to claim it as such. Florida does not treat property as either marital or separate when or if the parties separate. It is a gray area and is totally dependent upon each circumstance at the time each party files for divorce. The person that is willing to fight and spend the most money usually prevails.
The law does require that spouses live apart while the courts decide issues regarding custody, parenting time, child support and equitable distribution of assets. In making these decisions, it is important to retain a divorce attorney familiar with the law in your particular jurisdiction.
The Importance Of Mediation And Legal Representation
During a legal separation, mediation or the intervention of legal counsel will often become necessary to resolve outstanding issues. Florida is one of the states in which judges will encourage mediation as a method of conflict resolution, and the practice is becoming increasingly popular in voluntarily-separated couples who are able to communicate amongst themselves. For those who are considering the avenues available to them through a legal separation, seeking the assistance of an attorney is recommended. Legal counsel can look over all aspects of your individual situation, and advise you of the best course of action based on a full understanding of the issues that need resolution. This is particularly important for those who have extensive assets obtained during the marriage, or have children who will need support and time-share agreements when separation is finalized. Importantly, attorneys can advise an individual on turns of ownership of assets and other resources in order to help retain the maximum level of control over them when divorce proceedings conclude. A full separation may not be necessary when you first file for legal separation or pre-divorce. If you and your spouse are able to communicate well enough to reach pre-divorce agreements on your own, you can draw up a Separation Agreement detailing the responsibilities of each party before filing for legal separation. Although the practitioner can provide you with necessary separation mediation in Tampa and surrounding areas, you may be referred to another mediator, depending on the case.
Potential Obstacles And Solutions
While Florida courts do not require a legal separation prior to divorce, going through the process can come with its own set of challenges. Some of the following challenges may come up, particularly if the couple has children:
• Communicating with your spouse: In many cases, the communication is what lead to the separation in the first place. However, there may be some instances where you two need to communicate to discuss matters that only you two can decide. Staying open, respectful and honest with each other is generally the best way to prevent misunderstandings and confusion.
• Responsibilities for the children: If children are involved in your split, working together to determine custody arrangements for your children is always preferred from a kid’s perspective . This process can be challenging, but taking the lead to focus on open communication can help make things easier for everyone involved.
• Working while going through a difficult time: For many people who are going through major personal changes, work can be one of the more difficult aspects to cope with. Personal issues can begin to affect work performance, productivity, attendance, job stability and ultimately, financial stability. During this complicated time, it’s crucial to maintain proper focus on your job and to leave your home troubles at home when you do attempt to show up for work.
If these problems sound all too familiar, or if there are many more issues you may be dealing with, your spouse and you may need to consider legal separation prior to divorce.
Options Other Than Legal Separation
Sometimes a trial separation may be a happier alternative to a legal separation if both spouses still feel there is hope for the marriage, or if they are trying to determine if divorce is the correct avenue for them to take, rather than separation. If a trial separation is pursued, the couple will separate either by agreeing to do so, often moving out of the marital home and financially splitting assets with their spouse, or by one spouse moving out of the house in an effort to see if being apart will refocus the efforts toward saving the marriage. The big difference between a trial separation and a legal separation is a legal separation requires filing papers with the court, and the judicial approval of the separation.
With a trial separation there are no official judicial requirements for the couple to follow. However, if the decision is made to proceed with a formal separation, the process is quite similar to the divorce process. After showing proof that the divorce has no possibility of reconciliation, the court will enter a final judgment which outlines the details of the separation.
These details include everything that a regular divorce settlement would detail, but with one noticeable difference – since the couple is legally separated and not divorced, they are not free to remarry unless they go through a legal divorce.
Couples do not have to be legally separated before they file for divorce, but they can opt to give their marriage another shot with a trial separation first to make sure that ending the marriage is the right decision.
Wrap-Up
In summary, the process of legal separation in Florida is a complex and nuanced one that requires a careful understanding of the law and the potential ramifications for you and your spouse. From the requirement that all assets, debts, income, and expenses are fully and fairly disclosed by both you and your spouse, to the potential long-term impact it may have on your relationship and your family, there are many factors to weigh. This is not a process to be taken lightly , and it is highly recommend that you seek the advice of a qualified and experienced family law attorney if you are considering separation in Florida. A lawyer can help you navigate the process, advise you of your legal rights and obligations, and ensure that your best interests are protected throughout. Legal separation is not a procedure to be entered into lightly, and the consequences and implications of separation are far-reaching and long-lasting. There are many important issues that must be fully evaluated before deciding on a separation. Most of these issue are outlined in this article, but each situation is unique.