What does Legal Separation entail in Florida?
Perhaps you have heard of the term "legal separation" and have wondered how it differs from divorce. As a practical matter, separations do happen in Florida, but the state does not make formal legal separation possible. In states that do formally recognize legal separation, it works similarly to divorce, except you can remain married. You would divide the marital property, negotiate child custody, child support, and any spousal support (also known as alimony). Alimony varies from equitable distribution to an award for a significant period of time for rehabilitative alimony.
In Florida , there is no legal separation. The Court can’t simply assist you in separating from your spouse while also remaining married. You can have informal arrangements or a separation agreement; however, the court’s will not consider them automatically binding.
You are not restricted from obtaining a divorce after separating from your spouse. After a certain period, your spouse may obtain a divorce as well. It is important to note that Florida is a "no-fault" divorce state. This means you do not have to give a reason for seeking a divorce because it is simply considered "irreconcilable differences." Circumstances as to how or why the separation may be considered in court under certain conditions.
Divorce According to Florida Law
Unlike legal separation, divorce in Florida signifies the complete and formal dissolution of a legal marriage through a court order. Importantly, in Florida, divorce is called "dissolution of marriage" and is scaled into two categories: Simplified Dissolution of Marriage and/or Contested Divorce.
Dissolution of Marriage Simplified is a simplified divorce process in Florida for both parties who agree there are no major disagreements with regard to the dissolution of their marriage, and both parties must appear and sign a court-approved settlement agreement.
Contested Dissolution of Marriage is a traditional divorce proceeding where husband and wife cannot agree on all aspects of their divorce and the court makes any decisions that the parties do not resolve by settlement agreement.
Dissolution of Marriage allows for divorce in Florida based on either one party’s verification that the marriage is "irretrievably broken", or based on mental incapacity for a period of three years or more (in which case the party seeking the divorce bears the burden of proof).
In a Florida divorce, the court divides assets and debts and may award alimony. Any children of the marriage are in the "jurisdiction" of the court, which means the court will make any decisions regarding child support and visitation/custody issues.
Assessing: Rights And Responsibilities
Both legal separation agreements and divorce are legal means to settle matters such as child custody, spousal support, and property division. The primary differences lie in the ability to modify a legal separation agreement at a later time and whether or not both parties have to agree to its terms. For example, terms relating to child custody, child support, alimony, parenting plans and property division are also found in a Florida final judgment of dissolution of marriage.
Terms such as spousal support, child custody, parenting plans and property division can memorialized in both a legal separation agreement and a final judgment of dissolution of marriage. Thus, even though the front door to a legal separation may be unlocked temporarily, the backdoor to a Florida divorce is not locked.
Both a divorce and legal separation agreement can explore issues relating to child custody, alimony, child support, and property division. In the case of divorce, these issues are ordered by a court following litigation. In contrast to a divorce, though, a legal separation entails an out-of-court settlement of these matters. Unlike a divorce, the terms of a legal separation are subject to amendment at a later time.
In Florida, the grounds for a legal separation are similar to the grounds for divorce. For example, the Florida state laws allow couples to legally separate in the following situations:
Both legal separation agreements and divorces allow spouses to work out issues concerning custody and parental rights. Legal separations may be a better choice for parents who believe that the temporary custody arrangements will lead to a more peaceful relationship with their former spouses and lead to more stability for their children. A legal separation would to be appropriate where it is clear that a couple wants to divorce, but some additional time is needed to settle the terms of the divorce and the parties want to focus on the minor children and not on the specifics of the divorce.
Florida courts will rarely approve legal separation agreements that involve disabled or older couples. In these cases, the Florida courts usually prefer to "get the business of the divorce over with."
Money Matters
Legal separation in Florida does not extinguish the parties’ rights and obligations to file income tax returns with the IRS. Once the parties have been legally separated, there is much less likelihood that the appropriate amount of taxes have been withheld as required under federal law.
Generally speaking, alimony will be deductible to the payor spouse and taxable as income to the recipient spouse for income tax purposes. However, there are a number of restrictions that will legally prevent the deduction of alimony for income tax purposes. Generally speaking, you may not be able to deduct your payments if you are not legally separated or the obligation to pay alimony terminates upon the death of either party or the recipient spouse’s remarriage. From a cash flow perspective, the fact that the alimony may be taxable to the spouse receiving it may increase the amount of alimony that may be agreed to or ordered.
The parties may keep or change their health insurance coverage through their employer or may obtain coverage from private insurers. However, there may be a period of time in which a spouse is unable to obtain health insurance coverage outside the marriage due to legally-required pre-existing condition exclusions. If one spouse absolutely needs health insurance coverage, then establishing a legal separation may help ensure that the spouse is able to obtain and maintain such coverage at a reasonable price. However, this is simply an issue that should be addressed under the terms that the parties negotiate on their own or that the court orders.
If the parties have children, there will be child support obligations. While there may not be a dispute regarding the amount of child support that will be paid, there could be a considerable dispute over items related to health insurance and extraordinary expenses.
The Social/Family Aspect
The effects of legal separation or divorce extend beyond the legal proceedings and into nearly every aspect of everyday life. Family and friends may struggle to understand the terms of the separation or what is expected of them as the transition period unfolds. Some well-intentioned people may isolate the separated party or offer unsolicited advice. Finding ways to communicate the situation to others without oversharing is essential to maintaining relationships. Of course, some individuals will be supportive and helpful. Even in those cases, however, people typically spend less time with their married friends and more time within their own social circles. This is because separation often prompts financial or logistical changes. Going to a restaurant with a spouse and two children may have been standard, for instance. That same person may need to say no to the same activity because of budgetary changes . Perhaps they once enjoyed an active social life and made regular visits to local bars or clubs. Once separated, many people must prioritize their social lives differently, which can breed resentment or social isolation. Issues like these can affect relationships with friends and family members. A legal separation can also impact lifestyle, particularly in the case of spousal support. Whether one person pays alimony to the other and, if so, how much could have long-term implications for the future. The person who is ordered to pay alimony (whether temporary or permanent) may learn to budget for this expense, for instance, which could limit spending in other ways. Meanwhile, the recipient of those payments might begin budgeting for a future in which the necessary income disappears. While a legal separation does not fundamentally change the way that divorced couples are perceived by society, it can serve as a preliminary warning sign that a couple is headed for divorce.
The Decision: Legal Separation Or Divorce
When it comes to legally ending a marriage in Florida, you will have two options: legal separation and divorce. While the choice may seem straightforward on the surface, there are a number of factors to consider when determining which route to take. The first step is to understand the differences between legal separation and divorce. Once you have an idea of how the options differ, you’ll be in a better position to make your next decision: Should you pursue a separation or a divorce? There is no formula that tells you which is the right choice in your case, but you can turn to several key factors to help guide your decision. Before deciding on legal separation or divorce, you should review your situation and determine your needs for the future. If you don’t see any other path for your life than to go your separate ways from your spouse indefinitely, you should explore divorce. However, your circumstances today may not match your prospects for tomorrow. Think about where you might stand in a year, five years or more. If the terms of your marriage might be altered over time – for example, if your spouse can get better employment and increase income, or if the kids reach adulthood – you might be in a position to try separation to test those changes.
Seeking Legal Services
It’s also worth noting the nuances in the Florida legal separation process. For instance, if there are minor children involved, it would be a parent’s decision to remain at separate addresses if child support is being paid. The payments would be made to the Child Support Enforcement Agency . If the parents do not pay child support, the State of Florida makes it mandatory that a parent who has not paid child support on time for 15 days may be subject to criminal charges which may include the incarceration of the parent or the suspension of driver’s licenses.
Keeping in mind the complexity of these issues and the potential ramifications of the decisions made, hiring an attorney with expertise in these areas is highly recommended.