Does Florida Recognize Legal Separation?
Legal separation is a concept sometimes discussed when one party to that marriage desires to legally separate themselves from the other but has not yet determined if a divorce is in their best interest. The reality is that a legal separation is no more than a judgment of court that determines the rights, obligations and interests of the parties while they are living apart.
A legal separation is really nothing more than having a domestic court determine the status of the parties on a temporary basis. In fact, almost all of these domestic court orders are temporary because it is only in rare instances that the parties will not seek a full-blown divorce once they come to terms with their new realities.
However, as of January 1, 2015, the Florida Legislature eliminated the judicially sanctioned "legal separation" in the state of Florida and Florida Revised statute 61.183 now states that "there is no separate marital status of ‘legal separation’ recognized in the state of Florida . " As such, the parties are no longer granted "legal separation" status in the eyes of the law.
Florida courts do however continue to recognize "separate maintenance," which seeks for one spouse to pay support to the other spouse. This concept is rarely used and rarely granted. In the case in which separate maintenance is ordered, these court orders are also temporary until full-disclosure, and the parties obtain a divorce involving fully contested terms and conditions of a divorce settlement.
In contrast, when a Florida Family Law court hears an absolute divorce action, the standards outlining the divorce are defined and set forth by Florida Statute § 61.052. The court is to address the following issues:
Florida courts don’t issue temporary support decrees as part of a legal separation. For the court to address these items, a full-blown divorce proceeding must be initiated by either party.
Legal Separation Alternatives in Florida
If you and your spouse are considering a legal separation in Florida, it’s important to first understand the alternatives that exist. In Florida, there is no official legal status of "separation." There are only divorce options. However, couples do have other ways of handling their matter besides divorce.
Invented divorces. These are divorces put into effect only at one spouse’s request. Spouses remain legally married – and thus can still inherit from each other under Florida intestate law – but they are treated as legally separated. Of course, it’s always smart to have this kind of thing in writing. Often divorce court judges will not take any action on these cases, unless the circumstances of the spouses are especially well defined, such as a couple with special needs kids who need care.
Separation agreements. If you are sure you want to eventually divorce, but just need to separate for now, you have the option of drafting a separation agreement. This is essentially a legal contract that maps out your post-marriage life while still allowing you (and your spouse) to remain legally married. When you do file for divorce later, you can incorporate the agreement into your divorce.
Separation agreements don’t have to be filed in court, but they do not require a formal court review, either. Also, because it’s just a private contract, the rules regarding contested claims don’t apply. For example, if you and your spouse have kids together, the entire custody process must go through the courts for review.
Although the law does not recognize legal separations, the court will protect you against infractions of a separation agreement. For example, if you and your spouse have agreed to share your retirement accounts, neither of you can divest them of assets or make any moves that would exacerbate your divorce case.
Temporary relief motions. An alternative to entering into a separation agreement with your spouse is to file temporary relief motions. You can request that the court issue temporary injunctions of child custody, which will be revisited later on if the question goes to trial. You might also ask for a temporary injunction on an order of protection or some sort of temporary alimony or child support. There are many temporary injunctions available, but some are stricter than others. You should work with an attorney to determine which kind is most appropriate for your particular situation.
Separation Agreements 101 in Florida
A separation agreement is a legally binding contract between spouses that lays out the terms of separating, and these agreements are common in Florida. Couples can agree to separate while continuing to live under the same roof, or they can separate and move out of the marital home, meaning that they may not be immediately filing for divorce but they are establishing their intentions to do so. Separation agreements cover the same basic components as a divorce for the most part, with three major components: finances, property division, and child custody and alimony. The agreement must be signed and notarized to be legally binding. Before separating, couples should consider hiring a Florida family law attorney. An experienced Orlando family law attorney can help you create a separation agreement.
Finances and Property During a Separation
The choice to live apart and be legally separated before the process of divorce can impact finances and property. For instance, many married couples coming to a decision to separate have joint credit cards and bank accounts. Depending upon the date of separation (shown by the intention of one party to end the marriage and their overt acts to that end), a married spouse can run into significant debt with the other spouse being responsible for part of that debt.
For instance, if the parties have credit cards, and one party decides to charge items on a joint credit card with the intention to continue the marriage, the other spouse can be tagged for half in the event of a divorce. The test here being whether the charges were made with the intention of furthering the marriage. So what does that mean in practical terms? For example, the husband is planning on divorcing the wife but has not told her yet. He decides to charge some items for her. He makes plans to leave the house and file for divorce but then he continues to pay for the mortgage, utilities and daily living expenses. Many persons who come to our office recently separated from their spouse think that anything they did for the other spouse or home (roads, car payments, utilities, debts) could somehow be getting around the "equal distribution" rule. In practical terms, what it means is separation has a definitive effect on what we call "marital" debt (debt incurred by both parties during the marriage). What was incurred by one party for the benefit of the marriage will normally be treated equally between the spouses (for instance, half of the debt should be paid by the party who has it incurred on his or her credit account. Yes, the wife owes money on that credit card that she didn’t use, but it doesn’t matter. She shouldn’t be charged with debt she did not incur and that was for the benefit of the family. If the creditors do not know about the separation, and the couple signs documents saying they are married, this can cause financial problems for the party who has separated and is paying the bills on his/her own. This is the reason we now sign documents when we are doing financial disclosures not with our spouse but in front of our attorney and witnesses. This is to curb fraudulent signatures and the signature of one party who is only trying to help but signing documents that the other party should sign but refuses out of spite.
Many clients , including attorneys do not understand that a spouse can be responsible for the debts of the other spouse. The underlying reason is that most people have always been taught that those that benefit from the debt are responsible for paying it. Not necessarily so with spouses.
In Florida, married parties are responsible for the debts of one another during the marriage. Florida Statute 772.12 states: "Married persons are liable, jointly and severally, for any tortious act of their spouse acting within the scope of the authority expressly or impliedly delegated by the married person to the spouse."
As an example, say Husband tells his wife, "I’ll pay for your nose job and I’ll be responsible for that bill." That would be fine; in fact, she would probably be very happy! But then again, suppose, Husband says, "I really don’t want you to get a nose job, but if you choose to, then you’ll have to pay for it all yourself." Wife chooses to go get one anyway. Later, Husband can be responsible for half of the cost of it! This seems unfair, but the wife’s telling him no will ruin the marriage, and raise questions of whether she told her husband no, and if so, did she wish she hadn’t. The point is, if you ask Husband, this seems unfair, but the law views this differently—he chose, albeit very selfishly, to tell his wife to go get a nose job and in return promised that he’ll pay for half of it. Even though they may have later separated, he made that commitment and it is enforceable. Husband cannot now say, "But I didn’t want her to get one. It was her idea. I told her no!" Too late Husband—lawyers are now involved!
What you should take from this? Well, it typically isn’t a good idea to throw a marriage "under the bus" like this when telling the spouse to get a cosmetic procedure and promising to pay for half of it. Many marriages recover from mistakes, but this may be a little too much to overcome! Therefore, be very careful when making promises to a spouse in effort to create a marital agreement or using the agreement as leverage. After a divorce, the spouses are considered strangers, and whatever good will exists at the time of the agreement is long gone by the time of the divorce. Be careful of what is agreed upon. Even obligations agreed to after the separation are subject to an equal distribution rule.
Custody and Support During Separation
When a couple opts to separate without pursuing dissolution of marriage (divorce), issues surrounding child custody and spousal support are handled in much the same way as they are in a consensual or contested divorce case. Ideally, parents would reach an amicable agreement as to a parenting plan that makes sound plans for shared parental responsibility, time sharing, primary residence of the child or children, and other important matters. Since time sharing plans involve pieces of paper that outline the expectations of each parent as to how days and nights will be divided, it is very important that the parent who drafts the document use (in writing) the proper terminology, which may or may not be used in each state. Some terms may be better understood in local terminology, such as "primary residential parent," "visitation," etc.
Of note, in cases where parents cannot seem to agree on matters relating to visitation, and one parent feels it necessary to bring the case before the family law court, that party might want to file a petition to establish timesharing schedule and parental responsibility, in lieu of a motion for temporary injunction. The difference is that the latter is ultimately brought on by a parent in order to ask the court to enter an order that addresses parental responsibility and visitation only, without the need of a summons. Of course, some counties have different rules that apply to them.
The filing of this petition to establish visitation and parental responsibility will lead to a judicial meeting, also known as a case management conference and may include mediation. During this conference, it is possible the parties will come to an agreement. It is often helpful to get a third party involved to help reach a consensus about what visitation should look like. In certain counties, mediators are not part of the court; instead, mediators are independent contractors and operate their own mediation businesses. Parents may also agree to participate in reunification therapy provided by a licensed therapist.
If there are extenuating circumstances, however, regarding your need for temporary custody of a child (also referred to as "visitation") by a single parent, a motion with affidavit to determine temporary custody of minor child is appropriate. This type of petition – based on a finding of best interest to the child – can also oust a parent from visitation and grant that sole parent exclusive custody.
Consulting with an Attorney About your Separation
A family law attorney can be involved in all three stages of your separation process. Your lawyer will guide you through the initial stage, providing information on what a legal separation is like and how it will impact your and your family. If your marriage has reached the point where you need to separate, your attorney will present you with options and considerations. You may then choose to move forward with a trial separation, or pursue a more permanent decision like filing for divorce.
If you have a trial separation, your attorney will provide you with legal information on how it may impact decisions regarding parenting time and child support, pictures about carrying out the day-to-day needs of the children . This process can be quite complex, and your attorney will advise you on how to structure these arrangements so that they are fair and legal under Florida’s laws.
If you are ready to file for separation long term, your family law attorney will help you assess all of your goals and desired outcomes for you and your children. He or she will familiarize you with the process of filing for dissolution of marriage and seeking divorce, discuss you options, and answer your questions. Your attorney can also help you discover additional resources for support if you need them, and guide you through mediation, the court process, and the divorce process.
