The Difference Between Legal Separation and Divorce in Florida
Legal separation is the legal status of an individual whose marriage has been separated by a formal legal process. It is a state in which a married couple may be legally separated but remain legally married in the eyes of their state government. In this capacity, they are neither single nor divorced. Their unmarried status may be ordered by a judge or recognized simply through the consent of both parties.
Marital separation is effective once all applicable separation agreements have been signed. A marriage separation must last for an extended period of time before the court will grant the divorce. The separation may last for a year or even longer, delaying the date of the final divorce order for those who wish to retain their status as legally married. Child support and spousal support shall come into effect during the marriage separation, regardless of whether the parties have signed all relevant separation agreements .
Separation does not solve any of the legal problems associated with divorce, including division of property. However, many people find that living separate from their spouse allows them to work things out without having to go through a full-blown divorce.
The primary difference between a divorce and legal separation is the legal status of the parties in relation to the state of Florida. Divorce severs the marital relationship in the eyes of the state and removes all legal obligations from each party to the other.
In contrast, separation allows both parties to remain married. The legal separation may last for a year or longer and does not establish a final dissolution of marriage that entitles either party permanently to the marital property, such as the former marital home.
Rights and Responsibilities During Separation
The cornerstones of married life, like trust and reciprocity, often face the greatest strain from a physical separation. Even though a "legal separation" does not exist in Florida, a couple may live apart before divorcing. Whether or not a separation can be permanent is often decided by the conduct of the parties over time. During and after a divorce, especially when there are children involved, many issues arise that must be handled even if you are living separate and apart.
While they may live physically apart, the spouses still owe each other mutual economic support. As a result, one spouse may have a legal obligation to support the other during separation or divorce. Commonly referred to as alimony, the purpose of an award is to give the spouse the ability to support themselves without economically harming him or herself. Determining the amount and duration of alimony depends on numerous factors. The general factors considered are: Even after a case is settled, agreements between spouses concerning support are enforceable by the court. For example, if the court did not award alimony but the parties agreed to support each other in certain circumstances, that agreement would control. Furthermore, if the spouse receiving support did not pay, the other spouse’s wages could be garnished. Conversely, if the supporting spouse did not pay, interest may accrue and a lien may attach to assets and income until the debt is satisfied.
Similarly, the payment of child support is obligatory, even for a couple living separate and apart. In fact, the courts take child support very seriously. The obligation includes both direct and indirect costs. Direct costs include health care insurance, tuition, uniforms and supplies. Indirect costs include child care, transportation, etc. Even the parent with primary residential custody is required to pay child support if his or her income is less than that specified in a state guideline worksheet. In setting child support, the court will also consider the following: The allocation of asset distributions; allocation of insurance coverage; possession of the marital home; bill payments; and concerns of what constitutes essential needs are all covered in a Separation Agreement.
If the parties have children, many people do not understand that if there are any differences of opinion about spending time with children, each person should seek legal advice before making changes to any prior arrangements. Florida law is very specific about what constitutes time sharing. A parent may have timesharing even when the couple is separated. It is important to know that consensual parental time-sharing does not meet all of Florida’s legal requirements. If there are children involved, a Separation Agreement should provide: Whether married or separated, all parents have a legal right to love, raise and discipline their children. However, it is important that parents remember the best interests of their children when discussing time sharing. Failure to work out a reasonable time sharing or visitation plan can cause a lot of pain for the children involved.
Separation Process in Florida
Typically there are a few steps that a couple will take when they are seeking separation in the state of Florida. It is not likely, though, that they will actually file with a court or create a legal document that states the couple wishes to separate. They may avoid legal proceedings unless alimony or child custody issues arise out of their situation.
These couples usually choose one of three options: one spouse moves away, either to a temporary residence or even on a more permanent basis; the couple continues living together but separate in terms of sleeping arrangements; or they create a separation agreement to outline any financial issues, like the division of bank accounts and assets, or child support and custody arrangements. While the latter agreement is not legally binding, it can be used in court to help settle disputes.
Couples who continue to live together but separate in terms of sleeping arrangements may be seen as separated by the Florida courts, which could later be used to establish the "irretrievable breakdown" of the marriage even if they have not officially filed for separation.
In order to be officially separated, a couple has to live apart. Being separated often does not have a clear beginning, middle and end. In some situations, it is amicable, and they know that they want to live apart and marry someone else. Sometimes, this is a tense situation involving domestic violence or fraud.
A person interested in filing for legal separation should consult with an attorney on the specific circumstances.
Pros and Cons of Separation
Like all things in life, legal separation has its benefits and drawbacks. It is important to consider how it may influence the issues surrounding the relationship, such as finances, and the legal consequences of a legal separation. One of the primary benefits of legal separation is that it allows a couple to live apart without the finality of divorce. A legal separation leaves the door open to reconciliation by legally protecting both parties’ interests for up to one year after separation. During this time, a divorcing couple is required by Florida law to attend mediation to try and settle their dispute. Additionally, separation allows the couple to take time apart to decide what is best for them without fear of making an irreversible decision. Financially, legal separation can be very beneficial to both parties. A financial advantage of legal separation is that it requires the couple to allocate and separate assets and income before a divorce decision is made, thus, making a divorce more manageable. Dividing marital property and assets is often one of the main sticking points of divorces and legal separation can help alleviate any arising discord . It can also make the couple’s income clearer by separating and allocating resources. Spousal and child support can also be more accurately determined and calculated with separation. Financial and custodial agreements are more clearly laid out so that each spouse knows their responsibilities, rights, and obligations. There are some drawbacks to separation because they still have the potential to be just as contentious as a divorce. Even though a couple is legally separated, the couple is still married. A legal separation is supposed to reduce the divisiveness and emotional tension of divorce but separation is still divorce without the decree. The end result of legal separation may still be civil disconnect and acrimony. Separation may not be the best option for all couples. For some, the business of living apart may be too much to endure, or a couple may simply want to get a divorce. An uncontested divorce is often preferable to separation and divorce, especially since it is usually less costly and quicker than going through two different legal avenues.
Alternatives to Legal Separation
If you don’t want to file for divorce immediately but don’t want to live with your spouse under the same roof, you can still separate without a legal separation. There are several alternatives to a legal separation in Florida.
Marital Settlement Agreement
Even if you’re not ready to file for divorce, your spouse can file under the Florida Family Law Rules if you both agree to all terms of your divorce. If you and your spouse agree to every stipulation in your divorce, you may be able to create a Marital Settlement Agreement. This document must be notarized and signed by both parties to be considered valid. It outlines all responsibilities, property, debts, spousal support, etc. that were agreed upon by both spouses. The agreement must also be filed with a petition to initiate the divorce.
Postnuptial Agreement
A postnuptial agreement is similar to a marital settlement agreement. However, it’s created for couples who do not intend to separate or divorce, but better describes financial roles and other matters that may help in the event of a divorce. The agreement cannot be forced on either party and must be notarized and voluntarily signed. It should contain all the terms of your marriage, such as child support, responsibility of debt, pension rights, division of property, etc. This document will not have the same "teeth" as a divorce decree and is generally used as a guideline during an amicable divorce.
How to Move from Separation to Divorce
In Florida, there are several distinct steps for moving from a separated state to a legally divorced status. The first thing that you need to do is to file a petition with the local court system. In a divorce filing, this is a petition for dissolution of marriage. When filing, you will be subject to the same requirements as any divorce case. You may be eligible to file the case in the county where you are married, or the county where you are currently residing. When deciding these factors, keep in mind that only those in the military can file anywhere, and not just where they are currently stationed. The other spouse may file in a Florida court, even if you live in another state, at times. This is usually in cases where there are minor children involved and for situations that are documented through the Department of Health and Rehabilitative Services. Some domestic contracts, though , prevent this from happening.
After the filing, the court will send both of you a notice of the petition to dissolve the marriage. Between that and an answer to the initial filing, there may be default proceedings. Generally, in order to get an equal division of property, paperwork must be filed with the court within 45 days of the request. The respondent therefore only has 20 days to file an answer to the petition. In the case of a normal proceeding, the petitioner will have to supply an affidavit that outlines the financial circumstances surrounding the separation at the time of the filing. The corroborating committee will then administer the divorce. If the judge believes all the paperwork has been completed correctly, he or she will grant the dissolution of the marriage after a period of time. There is no waiting period, and no mediation is necessary to finalize the proceedings.
