Understanding Legal Separation in Florida: What You Need to Know

What is Legal Separation?

One possible definition of legal separation is staying married, but living both separately and apart. The separate and apart part is relatively simple to understand. It could mean that one spouse moves out of the marital home and lives in a different residence. Or it could mean that both spouses live in the same home, but that they don’t share any day-to-day activities. The former scenario, the spouse moving out of the marital home, may be more familiar, but it is the latter that is the most common in Charlotte county. In fact, the most successful cases I have had as a divorce attorney involve the parties living separate and apart in the same home.
The "staying married" aspect of legal separation is where the concept gets more complicated. People use the term legal separation almost like a synonym for divorce, when really, a legal separation has some completely different legal consequences than ending the marriage in a divorce . For example, maintenance or alimony only happens in a divorce case, not in a legal separation case where the parties do nothing more than stay married. Issues such as equitable distribution and child support only happen in a divorce, not in a legal separation case.
Why do people "choose" to stay married, but separate, rather than engage in a divorce case? Usually this is not a choice at all, either key personal factors, or the fact that there is just no such thing as a legal separation. Under our state’s Constitution, Chapter 61 of the Florida Statutes only deals with marriage dissolution, aka divorce. In our state, there is no such thing as a legal separation. In fact, if you look up legal separation in the Florida Statutes, the only mention of the term is a reference to a military separation. But what we do have in our state is a legal way to stay married, but separate.

Is Legal Separation Allowed in Florida?

Florida does not provide for legal separation. However, parties to a marriage may enter into a valid separation agreement, which when adopted and incorporated by a Florida court in a divorce action, can have the full force and effect of an enforceable court order.
There are a number of reasons why couples may choose to enter into a separation agreement. Most commonly, one party contemplates divorce but does not want to or cannot undergo that process for a period of time. In other cases, the parties may have significant assets that they do not want to lose due to a precipitous decision to divorce. Some may want to avoid the high costs and animosity associated with divorce, while others may need to remain together for financial reasons, such as when one spouse goes to school and the other is the sole breadwinner for a few years.
The incorporation and adoption of a separation agreement by a Florida court does not replace the requirements of Florida divorce law. The litigating party must meet the jurisdictional requirements of Florida divorce law. For example, under Florida statute, a party may not file for a divorce in Florida unless that party has lived in Florida for six months preceding the filing of the action. A separation will not satisfy that statutory requirement.

Alternative to Legal Separation in Florida

Often, people who are no longer content in their marriages are seeking to separate from their spouses while remaining legally married. In Florida, there are alternatives to formal legal separation that allow individuals to agree on the support and distribution of assets while remaining legally married. These agreements may be incorporated into a divorce at a later date or used as standalone documents.
Postnuptial Agreements
Married couples can sign a postnuptial agreement to determine in advance how assets will be divided and support will be paid in the event of a divorce or death of one spouse. Postnuptial agreements are often entered into after lengthy marriages, particularly those at or near high earning years. The agreement allows a couple to make prudent decisions regarding the future of their relationship, even if not made with the specific intent to separate in the near future. To be enforceable, a postnuptial agreement must generally:
As with a prenuptial agreement, specific language and legal requirements must be carefully evaluated in creating an enforceable postnuptial agreement.
Mediated Agreements
Spouses can also agree on terms related to property distribution and support through a mediated agreement. A mediated agreement is an informal alternative to legal separation. During the mediation process, a third-party neutral listens to both positions and helps the couple draft a written agreement that reflects what they came in each wanting to receive. This agreement can only be enforced in a Florida court if it meets certain legal requirements, including that:
Divorce
For a couple wanting to end the marriage but who are not in a rush to separate, a divorce may be the best option. Divorcing through the collaborative law process further minimizes the potential animosity between the parties, and helps them to develop a meaningful plan for the future. A personal representative, accountant, family law attorney, and financial advisor can help to ensure an equitable result that minimizes the likelihood of future disputes over important decisions.

The Advantages of Separation Agreements

Even though Florida does not recognize legal separation as a legal status, the drawing up of a separation agreement can be very beneficial. Driven by a desire to maintain the status quo, sometimes spouses who are separating want to ensure that everything is in place before a petition for divorce is filed and the entire process is initiated. By the time a divorce is final, things can have changed and what seemed like an acceptable division of assets may actually no longer resemble what people are willing to live with.
In Florida, Marital Settlement Agreements formed before a divorce petition is filed are not classified as legally binding like court-approved settlement agreements within a divorce process. Instead, these pre-filing agreements were established as a private contract to provide some assurances for both spouses on the major issues that could come up within a divorce .
Most of the issues that can be covered within a marital settlement agreement can still be negotiated outside of the process and included within that contract. However, the way that Florida law treats those settlements of issues changes dramatically depending on whether the agreement was signed before or after one party has filed for a divorce.
Some of the issues that a marital settlement agreement may cover include asset division, such as distributing property acquired and owned jointly or through one party during the marriage. Other issues may relate to children, and the divorce will legally alleviate the parental rights of each spouse. By signing that agreement, the parties can obtain a more customized and personalized parenting plan.

How to Approach Separation in Florida

When it comes to separation, it’s not uncommon for individuals to feel like they’re walking a tightrope as they figure out what legal separation means in their particular case. In Florida, the situation is unique because there aren’t any laws in place for legal separation. This doesn’t mean that you’ll need to "stay together" any longer than you want to. It just means that you are no longer legally bound until you complete the divorce process.
Still, there are some practical tips to keep in mind regarding legal separation in Florida:
Consult with a divorce attorney: If you are in a position where separation may be the best course of action, consult with a divorce attorney to help you understand your options. You may want to stay married for insurance or tax purposes. You may have religious reservations or there may be other reasons not to pursue a divorce. While every situation is unique, there may be benefits to separation before filing for divorce.
Get your financial house in order: If you do decide on a trial separation before filing, start separating the various aspects of your life. Open separate bank accounts and move money into them. Make sure you review your finances before determining what sort of relationship developing these accounts will have on your financial future.
Determine custody arrangements: If you have children, it’s also important to consider what custody arrangements may be in the interim. It’s best to work on establishing a parenting plan rather than rely on words and intent to keep the peace. Not only will you have a better understanding of the situation ahead, it will put you in a much better position when you do file for divorce.
Consider how your actions may affect your children: Particularly if there are significant issues in the relationship, there may be some situations that could be difficult for your children to comprehend. While it’s important to be honest, you will want to keep things age-appropriate. Handling your separation with grace and consideration will mitigate any negative repercussions for your children later.
Keep working on your marriage: A trial separation doesn’t mean the end of your marriage by default. Some couples still find ways to work things out during this period. Work on codependency issues, attend therapy and try to get to the core of your problems before calling it quits. This is your last chance – make it count.

Commonly Asked Questions about Separation in Florida

This section is designed to address some of the common questions I hear:
How do we separate legally in Florida?
The process of legal separation in Florida can be complicated. It involves filing a petition with the court and attending mediation, a hearing before a judge, or both. A family law attorney can help you navigate the process and secure a separation that is legally recognized.
Will a separation affect child custody and child support?
Separation does not affect custody on its own. However, it will have an important impact if you and your spouse attempt to negotiate a formal custody agreement. It affects child support because courts will look at the separation as a factor in the decision. The factors considered include:
What is the difference between separation and divorce?
With divorce , the finality differs from the separation. While divorce is a concrete step toward dissolution of marriage, separation leaves the future open. If you and your spouse are in the midst of divorce, then you will all but never separate during the proceedings. If you separate for six months or more and you decide to pursue divorce, the time may be counted — in whole or in part — towards the requisite six-month waiting period.
How is legal separation different from living apart?
The key difference is that when the court approves the separation, it becomes a legal proceeding. Unlike some states, Florida does not have a separate legal status for married couples who live apart. Unless a court order prohibits contact, your soon-to-be ex-spouse could be at your doorstep tomorrow. With a simple separation, nothing is binding.