What is a Florida Separation Agreement?
A Florida Separation Agreement is a contract between a husband and a wife in which they agree to live separate and apart. More importantly, the separation agreement encompasses what their rights and obligations will be to one another during this period, and also addresses the disposition of property and debts during the separation and at the time of a final divorce.
Florida Statute 61.10 requires that parties who enter into a separation agreement after a petition for dissolution of marriage has been filed in court must have an attorney review the agreement. The agreement must also be approved by the court. At a minimum , the separation agreement must be signed by the parties and notarized as provided in Florida Statute 117.05 and include the following:
(a) A clause by which each party waives either permanent or temporary alimony.
(b) A provision relating to the payment of temporary support to the other party.
(c) A provision relating to the payment of child support.
(d) A provision relating to the custody and care of the parties’ child or children.
(e) A provision relating to the purchase of insurance, including life, health, and disability insurance.
(f) A provision creating a division of property, specifying the real and personal property to be included in the ultimate equitable distribution of the marital assets and liabilities.
(g) A provision creating a division of debts.
(h) A provision specifying the responsibility for the fees and costs incurred by the parties in connection with the filing, defending, prosecution, and finalization of the dissolution of marriage proceedings.
The Advantages of a Separation Agreement
A separation agreement offers a multitude of advantages for spouses contemplating divorce. A couple often wants the immediate benefits of a separation agreement when one spouse leaves or moves out of the house, and particularly if children are involved. Florida law does not address legal separation, but a separation agreement, which is a contract between spouses, typically lays out the respective rights and responsibilities of both parties. It may include factors such as time-sharing arrangements with children, child support and alimony, how to divide real property, how joint debts will be paid and how credit cards will be canceled.
While many of the issues covered by a separation agreement fall within the estate planning category, such as allocating life insurance, retirement accounts and other assets, it will also cover issues more relevant to everyday living, such as how one party will pay the credit cards used by both spouses. A separation agreement, therefore, sets the ground rules for both parties in advance of the formal divorce process. This can save both time and money, as well as limiting animosity.
In addition to addressing known issues, the separation agreement flags potential issues and provides a process for addressing them. For example, the agreement may specify that a certain amount will be deposited into a joint bank account from which to cover known living expenses, while future expenses will be resolved on a case-by-case basis, or it may provide for payment into a secure credit card for the expenses of one party after assessing who uses what credit card and when. If the parties are functioning amicably, the long-term results of having eliminated confusion and uncertainty is tangible.
Some provisions commonly included in a separation agreement are:
In many cases, spouses effectively negotiate solutions to their pending problems following the filing for divorce, or even after the court has entered a final decree of divorce. However, an ideal time to execute a separation agreement is, indeed, at the outset of the divorce process. A separation agreement generally sets forth what a husband and wife may be legally able to obtain from the divorce process.
The Different Components of a Florida Separation Agreement
A Florida separation agreement should include a few salient elements to be effective. It is not strictly necessary for the written contract to be in any particular form or for it to be filed with the court; the primary requirement is that the agreement be voluntary.
The contract will typically address key concerns that require attention in any divorce, such as the division of property and debts, child custody and support, and spousal support or alimony.
Property Division
Division of property involves determination of which spouse receives marital assets and which debts will be the responsibility of each party. Generally speaking, all property and debts acquired during marriage are considered marital property to be divided equitably between both spouses. An exception applies to assets that were received as gifts, received by inheritance, or as compensation for personal injuries; these would typically be separate property not subject to equitable distribution.
Child Custody and Support
The separation agreement will typically need to include a detailed schedule for child custody, visitation, and support. When children are involved parties will have a visitation schedule that works for both parents, including the specificity of summer plans. The agreement should also provide for interim support until a divorce is finalized. When minor children are involved it is wise to work closely with a legal professional to ensure the final agreement remains in the best interest of the children.
Spousal Support
Divorce will either be the event that terminates spousal support payments, or provide details for termination. In any case, it is likely the agreement will provide terms of support including:
The voluntary nature of a separation agreement provides many positive features for spouses contemplating divorce. The agreement can help couples to avoid the stress of divorce by enabling them to address important matters without intervention from the court. Issues addressed amicably have a higher chance of being mutually agreeable.
How to Draft a Separation Agreement in Florida
In Florida, separation agreements may be drafted without the assistance of counsel. However, as with child support agreements, it is recommended that the terms of the separation agreement be drafted by or reviewed by an attorney. While there is no bright line rule that a separation agreement must be prepared by an attorney, the practicalities of preparing one without a knowledgeable third party assistance make it highly inadvisable to do so. In addition to the familiarity with the requirements of separation agreements under Florida law, an attorney is in a better position to advise you on the potential implications of entering into an agreement and your legal rights. If you are considering preparing a separation agreement on your own and without the assistance of an attorney, you should at the very least consider obtaining a consultation with an attorney.
If you want to go forward without one, you can simply type out the agreement and sign it. If there is a family law action pending, then there may be requirements for filing and disclosure to the court (see below). With respect to with the type of separation agreement to use, a basic separation agreement will provide for the handling of all of the parties’ debts and assets. A more complicated one may also address payments, alimony and retirement benefits. In a marriage where one spouse earned significantly more than the other and certain debts and assets will not be subject to equitable distribution, it may make sense to a prepare a more significant separation agreement, depending on the level of complexity of issues between the parties. As always, one must also consider income and cash resources as it relates to the ability to pay the attorney to prepare the separation agreement.
If there is a family law case pending between the parties, specific pleadings are required to enter into an enforceable agreement, both by agreement of the parties and also by submission of the agreement to the court. When properly filed in a pending court action and subsequently approved by the judge, the separation agreement is enforceable as a final judgment. However, if not properly filed in a pending proceeding, the agreement is not enforceable as a final judgment and will be binding on the parties as a contract. After entry of a final judgment of dissolution of marriage, the separation agreement may no longer be enforceable as a contract, although enforcement by contempt is still available. Because of this, it is advisable that a separation agreement be entered during the pendency of the action (or before the action is started) or as part of the final judgment.
Common Pitfalls to Avoid
An area unknowingly filled with pitfalls is the drafting of the Separation Agreement. Even the most experienced practitioners make mistakes (of course, we all learn from experience, don’t we?). The following are a few common mistakes:
- General Outline. The Separation Agreement should contain a general heading identifying the parties and that the Agreement is entered into in accordance with the Court’s final judgment dated ________ (to be completed in blank). This heading will provide the court with the ability to determine if this agreement satisfies the requirements of the final judgment.
- Incorporation. It is common in separation agreements to have at least one section where the party is re-affirming the terms of the Final Judgment. It is important to spell out what aspects of the Final Judgment are being re affirmed. Is it the entire Final Judgment? Or only selective provisions?
- Bracket Use. Brackets (which is a form of strikeout) should not be used within the separation agreement. The agreement should be typed in its final form and cross-outs should not be used. If mistakes are made, retyping the provision is the only way to modify it.
- Dated/Final Judgment. The Final Judgment should be in place prior to entering into a Separation Agreement or at least prior to the execution of a Separation Agreement. The Final Judgment should likewise have a provision within it that the parties are to enter into an agreement resolving all incidental issues such as alimony , equitable distribution, and any other issues that become necessary to effectuate the Final Judgment. By having this provision within the Final Judgment, it allows for the Separation Agreement to be entered at any time, assuming that the parties have not satisfied the Separation Agreement and/or no children were born of the marriage, etc.
- Child Support Guidelines / Child Support Guidelines Worksheet. Florida requires that all Separation Agreements which provide for the payment of child support likewise have attached a Child Support Guidelines Worksheet and references to the Child Support Guidelines with the exception of a few rare circumstances. However, even if one of the rare circumstances is present, it still may be advisable to have a child support guidelines worksheet prepared in order to avoid problems with child support adjustment/modification after the Separation Agreement has been entered.
- Not Using a Form. All Separation Agreements should be entered in, or adapted from, an example that is provided by a court or by a court rule. A number of websites exist which provide examples of such agreements on the internet. Likewise, at times it may be best, depending upon the complexity of the Agreement, to have a professional drafter prepare the Agreement, as it would be highly inadvisable for a party to attempt to create their own Separation Agreement. Things missed in the preparation and execution of a Separation Agreement can only be explained, not fixed.
Enforceability of Separation Agreements Under the Law of Florida
When it comes to separation agreements in Florida, a crucial aspect to consider is whether these agreements are legally binding and enforceable. A Florida separation agreement is a legally enforceable contract once the requirements for writing and residency are met. For an agreement to be enforceable, both parties must have had legal counsel during the preparation of the agreement, or at the very least, have had the ability to seek independent legal counsel. Additionally, the agreement must contain the signatures of the husband and wife, and the notary’s signature on a form separate from the agreement. As a prenuptial agreement, the enforceability of a separation agreement cannot be determined until the marriage has ended. Just as with any other private contract entered into by two parties, the courts will not assume the enforceability of a separation agreement without the facts or circumstances making it clear that it is enforceable. However, once the marriage has ended, the enforceability of the separation agreement depends largely upon whether the agreement is fair and was voluntarily entered into. The validity of the separation agreement will not be determined until a family law judge has thoroughly investigated the agreement, including the extent to which it alters the flow of marital property. Present and future support obligations, and the ability of the parties to meet their financial needs and obligations. The agreement must fit within the state’s public policy guidelines.
Modification of a Separation Agreement
While separation agreements are enforced according to the terms of the written agreements, there are many cases where modifications are appropriate and legally permissible, subject to the approval of the trial court. Issues impacting whether a separation agreement should be modified include whether there has been a change in circumstances relevant or material to the issues covered by the original agreement, and if so, whether modifying the separation agreement is justified because (a) it will further or accomplish the purpose of the original agreement or (b) the purpose of the original agreement has been frustrated, undermined or defeated such that a modification of the agreement should be permitted.
Common examples of when modifying a separation agreement has been allowed include , but is not limited to, instances where: the child’s primary residence changes; the amount of time the children are spending with each parent during the year changes; the about of income earned by either parent changes; a parent remarries and the other parent no longer wishes to preclude providing health insurance benefits to the new spouse by providing health insurance to a child; a parent has new children which increases their responsibilities and financial obligations.
To modify a separation agreement the same legal proceeding is required as a before, so the parties must bring the matter before the trial court.
