Legal Separation in Florida Explained
Legal separation in Florida is an often-misunderstood term. While many states have legal separation as a status between marriage and divorce, Florida is not one of them. According to Florida Law, there is no such thing as "legal separation." You are either married or you are divorced. While you are still married, you can live completely separate and apart from your spouse, but there is no legal status for that. Furthermore, you can file for an annulment and technically be rendered never married at all. But that is somewhat different than being "separated."
Some people assume that separation is a way to avoid divorce, but this is a common misconception. You are only separated from your spouse as long as you choose to be until one spouse files for divorce. When you file paperwork with the courts for divorce, you are legally stating that you are no longer going to be married. Getting an annulment decree is also effectively saying that you are not married , but it is more like pretending the marriage never happened at all. It is technically possible to get an annulment while you are separated, under some circumstances. But as long as you are legally married, you are still legally married, even if you live apart every day.
The primary difference between legal separation, which is not available, and divorce is that in a divorce, legal documents are drafted that terminate the legal ties that exist in a marriage, effectively determining a negotiation above how to divide assets, debts and parental responsibilities. Legal separation does not divide property and debts, and you do not have to establish a parenting plan or time-sharing if you have children.
You do not necessarily have to establish a parenting plan if you have children during your separation, but it is recommended that you get some legal guidance to ensure that you are doing everything correctly. Most people who are seriously considering a divorce are already dealing with their lawyers on a full-time basis.
Legal Separation Criteria
The long and short of it is that there are no specific eligibility criteria in Florida for couples who wish to file for a legal separation. Whereas a divorce decree requires that at least one spouse meet state residency requirements, the standard through which a petition for legal separation is filed is much more simplified. There is no chronology involved; couples can approach the courts in any county in Florida as long as both partners are in agreement. As long as you complete the petition and file it with the clerk of your local court, then you are eligible to file for a legal separation.
For couples who are separated and who still reside in the same home and share no responsibility for the other spouse’s welfare, a written legal agreement can be created to outline how finances will be handled, as well as child custody, spousal support and other issues. In the event of any disagreements between partners in the midst of a trial separation, however, legal separation does not necessarily provide a complete resolution; therefore, the courts conduct judicial hearings to settle all outstanding issues while the separation is in effect.
Before Filing – What You’ll Need
Before filing for legal separation in Florida, you must prepare the necessary documentation. The following is a list of documents you should make available for yourself and your attorney:
Child Support Guidelines Worksheet
This plays an important role in obtaining child support and visitation as it details all your expected net monthly income and expenses. If you are unsure about some of the information that needs to be put into this worksheet, rest assured that your attorney can help you out. An accurate (and honest) worksheet helps you obtain the best possible results.
Financial Affidavit
In family law proceedings, each party is required to file and serve a Financial Affidavit in accordance with Fla. Fam. L. R. P. 12.285. The purpose of this affidavit is to require both parties to list all of their income, expenses, assets and debts in order to fully disclose their financial status to the parties and the court. Such disclosure is essential because Florida requires that all financial issues be resolved in a complete, fair and equitable manner.
Marital Settlement Agreement
A Marital Settlement Agreement can be used in either an uncontested or a contested dissolution of marriage proceeding. Its purpose is to resolve all issues pertaining to the dissolution of the parties’ marriage. In essence, the parties have reached an agreement as to equitable distribution of property and liabilities, spousal support/alimony, decision-making responsibilities and time-sharing with children, child support, and any other matters. The agreement is subject to court approval, and before a court will approve it, the parties and their respective attorneys must acknowledge to the court on the record that the agreement is voluntary and fair.
How to File for Legal Separation
Filing for Legal Separation in Florida: A Step-by-Step Guide
The first step in filing for legal separation is to prepare and file a petition with your local circuit court. In Florida, this circuit court will be located in the county where either you or your spouse has been a resident for at least the past six months. In addition to the petition, you are also required to submit a summons form, which will notify your spouse of your legal separation petition. Finally, you will need to prepare and file a certificate of compliance with the mandatory disclosure process. Mandatory disclosure is a process that requires the disclosure of certain paperwork and records regarding the parties’ income, expenses, assets, and debts.
Once you prepare and file the necessary paperwork, you have several options. If you and your spouse want to separate amicably, you can schedule a mediation to work out the terms of your legal separation before you obtain the court’s approval of your final agreement. However, if you and your spouse cannot agree on your separation terms, you can schedule a hearing where a judge will draft the final separation agreement. After your petition has successfully filed with the court, you must wait 20 days before your hearing. At the hearing, you will be required to provide your basic information regarding the filing of the legal separation.
In some situations, the waiting period may be waived by the court.
Alternate Methods of Dispute Resolution
While legal separation may be the only option for some couples, there are alternatives that may provide a more cost-effective and amicable avenue for resolving issues. Mediation and collaborative law are two options that have gained popularity in recent years.
Mediation involves a neutral third party mediating between the couple. This multi-step process begins with a meeting between the couple and the mediator who explains the role. The divorce process is explained and the needs of both spouses are explained. A mediation agreement is then signed. The mediator puts together a preliminary financial disclosure form for income, tax returns, bank statements and credit card statements. The mediator works with both spouses to obtain all necessary information and then sets up a meeting with both parties and attorneys to begin negotiations. At the conclusion of negotiations, a final settlement document is created by the mediator to be signed by both parties and their respective attorneys. The divorce or legal separation is not final until the finalized agreements are signed by both parties, as well as approved by the court.
Collaborative law is a method in which each party maintains their own personal attorney who agrees to work towards an agreement outside the realm of the courtroom. Both spouses agree that if they cannot reach an agreement they will not continue to use their collaborative attorneys but will instead hire another set of attorneys for representation.
How Finances and Assets are Impacted
One of the most important aspects of a legal separation is understanding its impact on your finances, property, and related assets. Legal separation does not change legal rights relating to child support, child custody, alimony, property division and many other issues. It does, however, allow for certain adjustments that are only available when parties are not legally married.
If children are involved, the separation agreement may address child support. Whether or not child support is included in the separation agreement, parents will remain legally responsible for their children’s needs until they reach the age of majority. In addition, parents will be required to continue making mortgage payments, paying tuition costs, and covering other financial responsibilities even if they are granted a legal separation.
Legal separation has implications for health care and retirement benefits, as well. If you receive health care benefits through your spouse’s plan, those benefits may be terminated if no other arrangement is made. The same is true of life insurance benefits. If a separation proceeding has been instituted, both spouses should add each other to their policies as a soon-to-be former spouse (not as a spouse) . This will avoid any problems if one spouse is suddenly taken ill or dies.
Retirement benefits accrued by both spouses may also be affected by legal separation. Without the protection of a qualified domestic relations order (QDRO), one spouse may be granted full access to the other’s retirement benefits following separation. This means that benefits could be reduced significantly throughout the duration of the divorce. QDRO laws protect retirees by allowing financial awards to be paid directly from their accounts.
Life after a legal separation can be complicated, especially if you are living in the marital home. You may need to consider relocation, or finding interim housing arrangements until a judge addresses permanent housing needs. Both of these issues can have an impact on your financial obligations. As you begin to consider the possibility of separation, familiarize yourself with alternative approaches like collaborative divorce. Working with a trained collaborative divorce attorney can help you determine whether legal separation is the right choice for your family.
Parental Obligations and Child Custody
While a legal separation in Florida does not excuse parents from their parental obligations, it does create a legal separation of responsibilities. During a legal separation, parents will face many of the same decisions they would make during a divorce. Considerations to keep in mind are custody and visitation rights, child support, and all other parental responsibilities. These factors are important to note due to their potential impact on the legal separation agreement. The court will only approve an agreement that is in the best interest of the children involved and will likely deny or amend an agreement in which there is an unfair distribution of responsibilities. In the event that the legal separation leads to legal dissolution of marriage, the court will use the information included in the separation agreement to dictate the marital settlement agreement.
Seeking the Counsel of an Attorney
The ins and outs of legal separation in Florida, especially how to proceed in filing for separation, can be difficult to understand without a thorough background in family law. You need a lawyer to handle your case, which has the benefit of preparing all the important documents with little to no effort required by you. All assets can be clearly identified, put into the correct category, the amount if any of alimony and child support is determined and properly documented so that the separation can be concluded quickly.
There are also lots of grey areas that only an experienced lawyer can navigate. For example, say after a few months of separation the parties desire to reconcile. In that event, you will need to go back to court to formally request that the order be revoked.
However, before filing for legal separation, you should consult with a family law attorney in Florida to ensure that your rights under the law are not violated. Your legal strategy will depend largely on several critical factors that can only be determined by a full understanding of your unique case.
How to Finalize the Legal Separation Agreement
After reaching an agreement, if no action for divorce is pending at the time, one spouse can petition to have the dissolution entered along with the petition for legal separation. The legal separation is a nonfinal order of dissolution of marriage that requires the parties to wait at least one year before a final judgment can be entered. If an action for dissolution is already pending, the parties have no further need to file any documents with the court and the legal separation occurs under the terms of the agreement and is enforceable. During the waiting period, the parties are not permitted to amend the legal separation.
Once the waiting period has passed, either party can file a motion to have the legal separation converted to a final judgment of dissolution . The motion is to be accompanied by a verified petition to have the previously filed petition for dissolution amended to conform to law and the evidence in the case. After the filing of the motion and petition, the court shall hold a hearing. If the court finds that there is no dispute between the parties as to the terms and conditions of the separation and the agreement is consistent with statute and the best interests of the parties and children (where applicable), the court will enter the final judgment of dissolution and all previously ordered terms and conditions will be incorporated into the final judgment. If the court finds that a dispute exists, the court will set the matter for the appropriate type of hearing, including but not limited to a final hearing or trial.