Legal Separation in Florida

You and your spouse are not working out. There have been fights and disagreements, or perhaps the two of you have calmly determined that you no longer have a future together. But for one reason or another, you are hesitant to file for divorce. Perhaps you simply have a personal aversion to “divorce” and do not wish to be considered a divorcee. Or perhaps your religious beliefs and teachings frown upon “divorce” and you do not wish to violate your convictions. Or maybe you believe divorce to be “messy” and expensive and would rather avoid the hassle. You wonder if perhaps a legal separation is the answer to your concerns.

If you live in Florida, unfortunately legal separation is not and cannot be the answer to your concerns. That is because, unlike other states, Florida laws do not give troubled spouses the option of legally separating. This does not mean, however, that separating from your spouse is not without benefits. You may be entitled to file an action to establish child support and/or alimony. In addition, there are other ways in which you may be able to achieve the results of a legal separation despite its nonexistence in Florida.

What is a Legal Separation in General?

In the states that provide it, a legal separation is a proceeding that mimics a divorce proceeding in that parties can ask the court to enter child support orders, make custody determinations, and order that one spouse pay the other spousal support. At the conclusion of the legal separation, the parties are living separate from one another. The main distinction between a legal separation and a divorce, then, is that at the conclusion of the divorce, the marriage is ended. In a legal separation, the parties remain married.

Why Choose a Legal Separation Instead of a Divorce?

Some may wonder why a couple would choose to legally separate as opposed to divorcing. There are a number of reasons why a legal separation might make more sense for a couple as opposed to divorce:

• Divorce usually terminates the healthcare coverage of a spouse who is on his or her partner’s plan. Legal separation allows this healthcare coverage to continue.
• Some religious groups take harsh views toward divorce in general and toward individuals who divorce. A legal separation may help couples who are involved in these groups to avoid unpleasant discussions with religious authorities or friends.
• Military spouses gain benefits under the Uniformed Services Former Spouse Protection Act if they are married to a servicemember for at least 10 years. Legal separation can allow military spouses to continue being married in order to meet this requirement and access benefits later.
• Other benefits like Social Security benefits increase after a couple has been married for 10 years. In addition, a court considers the length of the marriage in determining whether alimony is appropriate and, if so, in what amount. Legal separation can, therefore prove preferable to divorce for purposes of accessing these increased benefits and/or support.
• Once divorced, a couple must file taxes individually (unless, of course, they remarry). A legal separation entitles the spouses to still file their tax returns as married and claim these deductions.
• A legal separation may be desirable if the couple is unsure of whether they want to remain married.

While a legal separation is not the solution for every distressed marriage, in some cases it provides additional benefits and protections to one or both spouses that would not be available to them if they simply filed for divorce.

Can Couples Legally Separate in Florida?

Florida couples are free to separate from one another at any time during the marriage and may do so without providing any notice to the other or filing any document in court. (Because there is no law providing for legal separation in Florida, the court does not need to become involved in the case of a couple that wants to live apart.)

In this context, to “separate” means that the couple is living apart from one another in different residences. Each spouse is paying the expenses of his or her own household and the two partners no longer have joint bank accounts and do not open accounts for credit or deposit jointly. If the couple has children, the children are living with one of the separated parents and may be visiting the other parent according to a schedule.

One word of caution to couples wanting to separate: be mindful of the residency requirement for filing divorce in Florida. You or your spouse must have been a resident of Florida for at least six months immediately prior to filing for divorce in Florida. If you separate and the two of you move outside of Florida, you cannot file for divorce in Florida unless one of you returns and reestablishes residency for a period of at least six months.

Can I Get Child Support and Alimony if I Am Separated?

While legal separation is not defined or discussed in the Florida statutes, the concept of obtaining child support without a divorce action is so discussed. Under Florida law, a parent of a child can file a petition requesting support from the child’s other parent if the other parent has the means to support the child but is not doing so. There is no requirement that a divorce be filed or even be contemplated in order for a court to consider and rule upon such a motion, even though child support is a frequent feature in many Florida divorces.

Obtaining alimony apart from a divorce tends to be much more difficult to obtain. Although the same statute authorizing child support absent a divorce also authorizes alimony without a divorce, in practice it appears courts are not as willing to award alimony in these types of cases.

Prenuptial and Postnuptial Agreements – An Alternative for Florida Couples

If you are concerned about providing for yourself in the event you and your spouse separate, you may wish to consider entering into a prenuptial or postnuptial agreement with your spouse. These agreements are treated as contracts; thus if your spouse agrees to pay you $1,000 per month in alimony in the event the two of you separate but do not divorce, a court is likely to enforce this.

A prenuptial agreement is an agreement between two people prior to their marriage; a postnuptial agreement is one entered into after the two people have been married. Florida law requires both prenuptial agreements and postnuptial agreements to:

• Be in writing. Any oral agreement between the parties prior to a marriage or following a marriage designated as a prenuptial or postnuptial agreement will not be regarded as such. If you want such an agreement recognized and enforced by the court, it must be in writing.
• Be signed by both parties.
• In the case of a prenuptial agreement, the agreement must be followed by a valid marriage. So for example you cannot enter into a “prenuptial agreement” with your significant other stating that he or she owes you spousal support in the event of a separation and try to enforce such an agreement if no valid marriage actually took place.
• In the event of a postnuptial agreement, there must be full disclosure between you and your spouse. This means that as part of the agreement you and your spouse must attest that you have been completely forthcoming with one another about your individual and combined income, assets, and liabilities. You are not permitted to enter into a postnuptial agreement in which your spouse agrees to pay you $1,000 in alimony in the event of a separation if he or she does not know about your large retirement account or trust fund. If you do create a postnuptial agreement with your spouse and it is later determined that full disclosure was not provided, your spouse can object to the enforcement of the postnuptial agreement and a court is likely to sustain the objection (meaning that the postnuptial agreement will not be enforced).

How Postnuptial Agreements Can Give You the Same Result as a Legal Separation

Even though Florida does not formally recognize “legal separations,” you can still obtain the same result through the careful drafting and use of a postnuptial agreement (or prenuptial agreement, although this would require a considerable amount of planning ahead). Because postnuptial agreements can be entered into any time after you are married, you could enter into one as part of you and your spouse’s decision to physically separate from one another. Here’s how it would work:

• Meet the requirements and formalities: Your postnuptial agreement will not be valid if the formalities and requirements are not met. Reduce the agreement to writing, sign the agreement and have your spouse sign it, and include a declaration that each of you provided full disclosure to the other regarding your individual and joint finances.
• Discuss alimony, child support, and visitation / custody: Your postnuptial agreement will need to discuss all pertinent topics: if your agreement does not cover spousal support, for instance, it will be difficult for you to come back later and ask that you receive it. Topics you may want addressed in the agreement include:

o   Who will reside in the marital residence, or will it be sold?

o   How much, if any, spousal support will one spouse receive from the other?

o   If there are young children of the marriage, where will these children primarily reside?

o   How much visitation time will the non-residential parent receive with the children and according to what schedule?

o   How will payments of child support and alimony be made? When are these payments due?

o   What, if any, property will one spouse be entitled to take and keep?

o   What, if anything, will be considered a breach of the agreement? If a breach occurs, what is the non-breaching spouse entitled to do?

The more detailed you make your agreement (assuming your spouse is willing to agree to the terms, of course) the uncertain your separation will be.

• Keep the signed agreement close at hand in a safe place. Again, both you and your spouse will need to sign the agreement. So long as the two of you are voluntarily abiding by the terms of the agreement, there is no need to file the agreement with the court or seek judicial intervention. If, however, your spouse stops complying with the terms of the agreement, you may need to file an action in court to enforce the terms of the agreement. At such a time it will be necessary to present the signed postnuptial agreement to the court.

Although you can draft a postnuptial agreement yourself, it may be best to have an attorney draft the agreement for you. This will help ensure the agreement conforms with statutory requirements and is enforceable.

Conclusion

Unlike some other states, Florida does not formally recognize a “legal separation.” If you are wanting to separate from your spouse – that is, live apart but remain married – you are able to do so without filing any special form or petition with the court. You are considered to be separated from your spouse when the two of you are maintaining separate residences, paying your own separate expenses, and are not commingling funds in a joint account.

Even though Florida does not have a procedure for filing for “legal separation,” you can bring an action to obtain child and/or spousal support at any time without filing a petition for divorce. You must present evidence showing that your spouse is able to but has failed to support the children of the marriage and/or you. Child support petitions are generally granted, whereas petitions for spousal support are not often approved where the parties have not filed for divorce.

You may be able to accomplish the same result of a legal separation by creating a postnuptial agreement (assuming you and your spouse are speaking with one another and can agree on the terms). It may be best to have an attorney draft this agreement to ensure it conforms with statutory requirements and contains all the necessary terms and provisions.