What is a Legal Separation in Florida?
In Florida, there is no legal separation status for couples who are not completely divorced. Girones v. Girones, 73 So.3d 868 (Fla. 5th DCA 2011). A legal separation order, or separate maintenance order, can provide couples with the relief of alimony and distribution of property without proceeding through a divorce. Since Florida has no legal mechanism for obtaining a legal separation, couples must divide all property and assets before a divorce is finalized. Under the Uniform Dissolution of Marriage Act ("UDMA") incorporated into the Florida Statutes, "marriage" is defined as "… a personal relation arising from a civil contract, to which consent of the parties capable of entering into the contract is essential." Florida Statutes Section 741.212. A divorce proceeding encompasses any legal separation activities that the State of Florida recognizes. The term "separate maintenance" refers to the similar remedies a couple can request prior to divorce.
Florida UBDA provides for an award of alimony as part of dissolution proceedings. Florida Statutes section 61.08 states that: "The court may grant alimony to either party . In determining whether to award alimony and the amount, terms, and duration of the award, the court shall first make a specific factual determination about the following: (1) The standard of living established during the marriage; (2) the duration of the marriage; (3) the age and the physical and emotional condition of each spouse; (4) the financial resources of each spouse; (5) the earning capacities, educational levels, and vocational skills of the parties; (6) the contribution of each party to the marriage, including, but not limited to, child care, education, and career building of the other party; (7) the responsibilities each party will have with regard to any minor children they have in common; (8) the time needed by the recipient to acquire sufficient education or training to enable them to find appropriate employment, and the responsibility of either party for any special needs; (9) the tax treatment and consequences to both parties of any alimony award, and factors contained in section 61.081; and (10) any other factor necessary to do equity and justice between the parties."
Courts apply a two-step process to determine whether a legal separation is appropriate; first, the court must determine that a legal separation exists where there are specific legal and financial duties that must be upheld, and second, the court must enumerate the required acts. A court may order a spouse to pay the other spouse money for necessities, such as food, shelter, and medical care, and the court may not require a spouse to pay divorce-related debts while living apart from his/her spouse. alimony generally is awarded where the claimant has a need and the other spouse has the ability to pay.
Unlike other states, Florida does not require legal separation before divorce.
How to Get a Divorce in Florida
The prospective divorce client or spouse files a Divorce Complaint (also known as a Petition for Dissolution of Marriage) and pays the filing fee to the Circuit Court in the county where either party resides or where both parties reside. The party who files the Divorce Complaint becomes the Petitioner, and the other party becomes the Respondent. The filing of the Divorce Complaint starts a divorce action. After the Divorce Complaint is filed, the Petitioner or the family law attorney will prepare a Summons for the Clerk of Court to issue. The Clerk of Court receives the Petition for Dissolution of Marriage, issues the Summons, and then forwards the Summons along with two copies of the Divorce Complaint and a Notice of Social Security Number Information Form to the County Sheriff’s Office where the Respondent resides. The Respondent must be served (by the County Sheriff) with the Summons, Petition for Dissolution of Marriage, and Notice of Social Security Number Information Form in order for the Court to have jurisdiction over the Respondent and the Court can have full control over all issues. After the Petition has been filed and the Respondent served, the Court will schedule a Preliminary/Case Management Hearing. Sometimes this hearing is called an Acknowledgment Hearing depending on the local rules of each circuit court. This hearing is fairly informal and the purpose of this hearing is to ensure that service of the Dissolution Complaint occurred, and if so, ADVISE the parties of their obligations under the Family Law Rules and Forms and from there the Court will go through each party’s assets and liabilities and their plan or position on each item so the Court has a better understanding of what issues may need to be addressed by the Court at a later date. If there is an issue the parties wish for the Court to decide on at that time, such as the temporary tenancy of the residence, or who is entitled to use the family car, or who is entitled to use other property while the case is pending, the Court can address those issues during that hearing and issue Temporary Orders for that specific issue. Parties are required under the Florida Family Law Rules and Forms to file with the Court a Financial Affidavit and Mandatory Disclosure. In Mandatory Disclosure both parties of a divorce are required to furnish the following information to the opposing party: c. Copies of bank statements for all open accounts and safety deposit boxes held individually or jointly; d. Copies of the monthly statements for life insurance policies; e. Copies of the most recent quarterly statement for each account of any employee retirement, profit-sharing, pension, 401K, or other deferred compensation plan f. A copy of the current Decree, Endorsement, Adoption Contract, Plan Document, and Summary Plan Description for each account type listed above; g. Quarterly statement for all open accounts and safety deposit boxes held individually or jointly. 2. A signed declaration of social security number form; 3. A copy of the parties’ most recent tax return; 4. A current pay stub for the parties’ wages; 5. A certificate of the child support arrearage; 6. Child support Worksheet; 7. Dependent Care Expensese Worksheet; 8. a Parenting Plan and 9. Joint or Individual Deposition regarding grounds for divorce and other requirements of law. Upon filing the above, Florida Family Law Rules and Forms suggest that the Petitioner’s family law attorney prepare a Notice for Trial. The Notice for Trial is a motion that the action be placed on the trial calendar. To bring a dissolution of marriage action to trial, rule 1.440(a) requires that the moving party file notice of trial on forms 12.923(a) or 12.923(b) or substantially similar form (when seeking former or current spouse’s medical insurance identification information, respectively). Rule 1.440(b) requires that "a copy of" the notice of trial be served "on all parties and the judge assigned to the trial." Upon filing the notice of trial, the judge may set the case for trial and notify the parties without requiring a case management conference.
The Differences Between Legal Separation and Divorce
Legal separation and divorce are related but distinct concepts under Florida law. The key differences between them often cause confusion as spouses attempt to choose which option is right for them. When spouse’s agree on how to deal with marital assets and debts, on child support and other financial matters, legal separation may be the best option. However, if spouses cannot agree, divorce is the appropriate next step.
One of the major differences between the two is marital status. In a divorce proceeding, the marriage is completely dissolved. Both spouses are released from their legal obligations to one another. In legal separation, on the other hand, the spouses are still legally married. They may agree to live apart, but they have not divided marital assets or entered into a child custody agreement. For most people, this does not provide the relief they want.
In legal separation, the spouses remain equally responsible for all financial obligations. If assets were not divided before the separation, they will also divide all marital assets and debts. Spouses are not required to share an equal portion of all assets. Division of assets can be more balanced when spouses have agreed on how to deal with matters.
A separate agreement can address how debts and assets are to be divided. Spouses may determine the following: Parents retain legal rights to their children in a separation, just as they had prior to separation. On the other hand, a divorce proceeding results in a divorce decree that addresses parenting arrangements. Spouses who have children from their marriage and desire to live apart may want to consider having both legal separation and child custody agreements in place to help simplify matters. Because divorce decrees dissolve the marriage of two people, and legal separation leaves the spouses legally married, this can create conflict in certain situations. A single person may have tax advantages, while a married person could receive a tax disadvantage. Child custody agreements are also a sensitive concern if there is no divorce in place before a split.
Advantages and Disadvantages of Legal Separation
Pros of Legal Separation
One of the main advantages to legal separation is that it ensures both partners are living apart and have no financial ties to one another. Instead of waiting for several months for a judge to say when you can expect your divorce to be finalized, you get an official date upfront. By separating the date of separation from the date of the divorce, you know exactly when you are no longer married and when you can remarry without worrying about any legal red tape that might arise when there’s any ambiguity. Your spouse will not have access to medical insurance, for example, under your plan once the legal separation goes into effect, which can free up additional income.
Cons of Legal Separation
There is always the potential of salvaging a marriage if you and your partner take the right steps, so it wouldn’t be wise to pursue a legal separation unless you are confident that it’s the right thing to do. People occasionally change their minds about reconciliation, and you want to give yourself the best chance of making the right decision. It’s certainly possible , perhaps even likely, that you will make more progress getting your marriage back on track than if you think you’re no longer married. When you no longer view your spouse as your husband or your wife, it’s much easier to let the divorce take over your life.
Legal separation is not useful in all cases, of course. Certain states, such as Arizona, require that you only follow the legal path to divorce, so you may not have any other options. However, if you have offshore assets or joint debt accounts with your spouse, then that could impact the decision significantly. If you have young kids, a legal separation tends to affect the children in a different way than the divorce does, although it does not literally alter any child custody arrangements.
You might also find that getting a legal separation tends to prolong the divorce process more than a regular divorce. One of the primary reasons you might want to separate is if you want to rely on your spouse’s medical insurance. If that is true, it could turn out to be quite expensive to remain legally married before going through a divorce.
When You Should Pursue a Divorce Instead of Legal Separation
For some people, divorce may be a more appropriate step than legal separation. In fact, there are several scenarios in which divorce is the preferred option over legal separation:
- You Want the Finality of the Relationship – Some couples just want to be legally divorced. If you have no interest in reuniting with your spouse, you and your spouse are able to put the relationship behind you, and there are no children to worry about, a divorce may be the best option.
- You Are Open to Remarriage – While some divorced couples choose to reconcile and many people fear that remarriage will be impossible if they are legally separated, there are no legal or technical reasons that a legally separated couple cannot update their legal status to married. With the proper legal documentation, you may update your relationship status as many times as you wish.
- You Wish to Pursue a Comprehensive Legal Outcome – In divorce, you are not only able to obtain a clear, final obtain for custody and time-sharing matters but you can also obtain alimony, distribution of marital assets and debts, distribution of retirement benefits and other important legal protections.
Legal Help: Separation versus Divorce
When questions of legal separation arise, many ask the same question: Is it better to separate first or simply file for divorce? When it comes to filing for divorce, the age-old adage of "knowledge is power" reigns supreme. Although you can get a separation without getting a divorce, this does not mean that it is the best option for every couple. Depending on your situation, legal separation may bring peace of mind and some valuable space while you sort things out. On the other hand, divorce is a permanent parting of the ways, and this path offers many benefits. To make the best decision for your situation, it helps to consult a legal professional. An experienced family law attorney can help you decide what is best for you and your family . Although every divorce case is unique, it is reasonable to assume that the majority of cases are not "easy." Divorce is a challenging process, and it often requires solid preparation on multiple fronts. Once you’ve decided to get divorced, you need to file for divorce while also taking steps to secure your future. This is where consulting a family law attorney can prove invaluable. Legal professionals offer sound advice, help you create a solid plan, and guide you toward a successful outcome. They also help with everything from filing the necessary paperwork to setting up support and protecting your assets. It is advantageous to seek legal advice well ahead of your date of separation so that you can enjoy peace of mind as you navigate this difficult period of your life.