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Florida Legal Separation
Legal Separation in Florida

There is no specific law defining legal separation in the Sunshine State, and Florida does not recognize legal separations. Rather, a couple seeking legal recognition of their physical separation without divorcing takes advantage of several different state laws. These include laws that permit child support during marital separation, grant the couple the ability to draft a marital separation agreement, and award alimony in certain cases of marital separation absent divorce.

The functions of divorce and marital separation confirmed by a court order are largely similar. Both establish financial support for the children, divide assets and debts, and grant alimony in some cases. Divorce terminates a marriage, whereas a couple remains married in a marital separation.

Marriage separation, which is also known as legal separation or marital separation, is the legal action formalizing a de facto separation. During this separation, the couple is still legally married; however, the legal separation is granted in the form of a court order (in other jurisdictions). Florida family law provisions establish the grounds for divorce or obtain orders legalizing a marital separation, and they dictate the procedures used to pursue both divorce and legal separation.

In Florida, a spouse may request court adjudication of certain issues if there are children involved and the parents are living apart. These include the division of property, child custody and visitation rights, as well as the amount of any child support payments. When one spouse resides in a different state from the other spouse and child, the spouse in the other state may obtain an adjudication of obligation to the spouse and the child.

Even though the Florida courts don't have specific rules for separation, the courts can take an active role in the process, and the parties are not prohibited from maintaining any other proceedings for other or additional relief during their separation. Even without separation orders, Florida law permits couples to enter into legal agreements to formalize the terms of a separation, giving structure to a distressed marriage while the spouses live apart. These include:

  • Separation Agreements - In Florida, the couple must enter into the legally binding agreement on their own accord and follow its terms, but the agreement can provide the same result as a legal separation in other jurisdictions. In Florida, however, the court does not approve the agreement or resolve disputes.
  • Petition for Support - The spouse who leaves the marital residence without actually filing for divorce can be ordered to pay child support and alimony (if applicable) from the custodial spouse. A "Petition for Support Disconnected with Dissolution of Marriage" enables one spouse to receive child support and alimony (if applicable) from a spouse that has moved out. The petition specifies that the request is not related to a Petition for Dissolution of Marriage.
  • Postnuptial Agreements - The couple agrees to a postnuptial agreement that specifies the terms and conditions of the division and distribution of assets, debts, alimony and other issues in the event of a divorce.

When a spouse sues for support, the court then has the right to adjudicate the financial obligations of one spouse to the other spouse and the child, if there is one. The Florida courts can establish the child's primary residence throughout the period of separation, which means the courts determine the custodial parent during the separation. Moreover, the courts determine custody and visitation rights for the parties during the separation (considering the number of children, the working hours of each of the parents, and primary custody during the separation).

Separation Agreement

A separation agreement is a legal binding contract signed by spouses, which is intended to resolve property, debt and child related issues. This can be a very complex and detailed document depending upon the unique situation of the marriage. Many spouses consult an attorney to provide this or they decide to prepare their own.

Grounds

Florida permits a so-called 'limited divorce', which is similar to legal separation in other states. Grounds for a limited divorce are cruelty, desertion, and voluntary separation. The court establishes the primary residence of the children, which is the place where the children spend most of their time. The court decides visitation rights of the noncustodial parent. Florida requires separated parents to list their income and resources, and calculates a support amount to be paid monthly by the noncustodial parent to the custodial parent. If a divorce petition is eventually filed, the court takes up the issues of visitation, custody and child support, as well as other agreements such as the division of property. If the couple does not proceed to a divorce, then they remain legally married.

Residency

A party must be a resident for at least six months.

Procedure

There is no action for separation in Florida.

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