Is there a legal separation in Florida?
There is no formal right to a legal separation in Florida. Legal separation may be formalized in some states but is absent in the Florida statutes. There are various measures a couple can take to approximate a legal separation. One notable example is a postnup agreement. Also, courts have the right to impose both child support and alimony in the absence of a divorce filing.
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 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 and Important on Separation in Florida
Some states have a formal system of legal separation. 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. 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 separate from one another. The main distinction between a legal separation and a divorce is that at the conclusion of the divorce, the marriage is ended, while, in a legal separation the parties remain married.
We will continue to refer to “legal separation” for purposes of this discussion. But, 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 more 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 except 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 postnuptial agreements must:
- 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 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 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.
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. 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. 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.
Original article by myfloridalaw.