One of the most frequent questions our clients ask is whether a couple can file for legal separation. The answer is both yes and no. No – because Florida does not specifically recognize legal separation. Yes – because there are ways to address the needs of those people that desire a legal separation. Perhaps your marriage is not working out but the two of you agree that a divorce is not appropriate at the moment. Or you have children and want to minimize the impact on the kids. Or you could still have hope for the marriage but want to protect yourself in the event that things go poorly in the very near future. Finally, there could be valid religious reasons for not filing for divorce. Fortunately, there are precautions you can take to protect your rights, now and in the future. Florida may not have a legal separation statute but there are some laws that can help in the event of a separation.
First Some Basics on Separation in Florida
Some states have a formal system of legal separation. It is just what you might imagine. A formal agreement, signed by the parties, and then signed off by a court. You cannot do the same thing in Florida. There are no Florida statutes on legal separation. There is no recognized case filing to formalize a legal separation in Florida. And because there is no recognized type of case – there is no mechanism for judges to sign and enforce a separation agreement or order. 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 separately 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.
So in Florida, a legal separation that is signed off upon by the court is not and cannot be the answer to your concerns. As discussed, 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.
We will continue to refer to “legal separation” for purposes of this discussion. But again – keep in mind that legal separation in Florida does not formally exist.
Can I Get Child Support and Alimony if I Am Separated?
Florida law has definite and clear provisions on child support between parents that are separated. That is because many children are born out of wedlock and parents routinely split apart. The state is especially interested that child support payments be made to parents that care for kids by themselves. And if a child was born during a marriage the issue of paternity is automatically established. Child support tends to be the easiest issue to force in an adversarial separation. Of course, many people voluntarily want to live with a legal separation. In those situations, the court will just about always sign off on a voluntary child support agreement.
The same statute also allows separated spouses to seek alimony – even in situations where the spouses have not filed for divorce. This exact scenario is a bit rare but is clearly laid out in the statute. In practice, the courts are not as likely to award alimony as they are child support. Keep in mind this principle applies to spouses that want a legal separation and are not in agreement on alimony. Most courts will readily sign off on a voluntary separation agreement between spouses in Florida.
Here is an excerpt from the Florida Statutes:
61.09 Alimony and child support unconnected with dissolution.—If a person having the ability to contribute to the maintenance of his or her spouse and support of his or her minor child fails to do so, the spouse who is not receiving support may apply to the court for alimony and for support for the child without seeking dissolution of marriage, and the court shall enter an order as it deems just and proper.
Postnup Agreements as a Substitute for Legal Separation
One of the biggest potential issues for people desiring a legal separation is division of assets and debts. This is the area of Florida law that is completely lacking. There are no provisions contained in Florida statutes for a court to sign off on an agreement separating assets or debts. But there is a mechanism where a couple can sign off on a contract that will govern how assets will be treated in a future divorce. That mechanism is known as a postnup agreement. A postnup agreement is an agreement between two people during their marriage.
Florida law requires 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.
- 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 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 Postnup Agreements Can Give You the Same Result as a Legal Separation
Even though Florida does not formally recognize “legal separations,” you can still obtain similar results through the careful drafting and use of a postnuptial agreement. 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. 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 to be addressed in the agreement include:
- Who will reside in the marital residence, or will it be sold?
- How much, if any, spousal support will one spouse receive from the other?
- If there are young children in the marriage, where will these children primarily reside?
- How much visitation time will the non-residential parent receive with the children and according to what schedule?
- How will payments of child support and alimony be made? When are these payments due?
- What, if any, property will one spouse be entitled to take and keep?
- 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 more 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 to statutory requirements and is enforceable.
Child Custody in a Legal Separation in Florida
The one thing you cannot do when crafting your separation documents is absolutely “pin down” parenting provisions (or in other words custody provisions). Yes, you can fill out a parenting plan, sign it, have it notarized, and keep a copy for future use. But because of the nature of custody law in Florida, the court will always have the ability to revisit custody provisions in the future. Florida law requires courts to always consider the best interests of children during divorce cases. That means an informal parenting plan signed during an attempt to craft a legal separation will not necessarily stand later on.
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 service member 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.
Unlike some other states, Florida does not formally recognize a “legal separation.” If you want 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.
And most important of all – you cannot “contract away your child.” Informal parenting plans or documents that arrange where your child will live during the separation will not be binding on the court in a later case. The court can always revisit children’s issues.