Legal Separation vs Divorce in Florida
- McMann, P.A.
- Sep 25, 2024
- 5 min read
Updated: Apr 3
Instead of proceeding with a divorce, many couples choose to separate, either temporarily or permanently. Separation is favored by many couples as an alternative to divorce in order to avoid costs, the complexities of legal processes, emotional distress, or due to their belief that divorce is too permanent.
"Legal" Separation
One common misconception regarding Florida's domestic laws is the idea of "legal" separation. While some states recognize this, legal separation is not acknowledged in the State of Florida. In Florida, couples that separate can still safeguard their rights, assets, and children by taking specific legal measures in preparation for a potential divorce in the future.
During a separation, a married couple resides separately while still maintaining their legal marital status. This allows them to retain certain benefits such as health insurance, social security, and military benefits. Additionally, they might still be required to file taxes jointly, and the obligations for child support and alimony could persist.
Separation Agreement
The parties have the option to mutually agree on specific binding terms that will be in effect during their separation period. For example, they can reach an agreement on matters such as child custody, child support, spousal benefits, division of assets, and even decide on the occupant of the marital residence.
The spouses can reach agreements on most matters as long as they do not violate any public policy exceptions. Child support is a public policy exception meaning a separation agreement cannot waive child support. A separation agreement does not terminate the marriage which leaves room for the possibility of the spouses reconciling the marriage.
If the spouses cannot agree on most issues, they can file a Petition for Support Unconnected with Dissolution of Marriage. This legal action enables a spouse to request child support and spousal support without seeking a divorce. Additionally, a spouse can seek court assistance in addressing custody or visitation issues while still married but living separately.
In the event of a divorce, a court can review and reconsider all the terms that the parties previously agreed upon. This means that the court is not obligated to uphold the arrangements that were in place during the separation period once the divorce is finalized.
Divorce
Divorce, also known as dissolution of marriage, is the legal process that ends the marital union between two individuals, returning them to their status as single persons. In essence, it signifies the legal end of a marriage and the way in which couples separate their lives from each other.
During a divorce, the marriage is legally dissolved, and the couple's assets and debts are divided. Shared benefits are typically discontinued, and the tax situation of both individuals is altered. Child support and alimony arrangements may also be established. If an agreement cannot be reached, the court will establish the terms of the settlement.
Although divorces may seem to follow a similar process, there are actually various types that can impact the duration and complexity of the case.
Fault vs. No Fault Divorce
Similar to many other states, Florida allows for no-fault divorce, eliminating the need to prove that one spouse's behavior led to the marriage's dissolution. The only requirement is to declare that the marriage is "irretrievably broken." While Florida does recognize mental incapacity as a basis for fault-based divorce, this option is seldom utilized due to the strict criteria, requiring the incapacity to persist for a minimum of three years and be validated by a court order.
Contested vs. Uncontested Divorce
Apart from establishing the reasons for divorce, it is necessary to consider whether the divorce is disputed or not. A contested divorce indicates that the parties do not reach an agreement on various matters like asset distribution, financial support, or child custody.
In such cases, the parties must submit a regular divorce petition, depending on whether they share property or have children. Florida also provides a simplified divorce process for couples without disagreements or with minor children. Simplified divorces are processed more quickly but involve relinquishing the right to a trial and spousal support.
Limited Divorce
Another choice available for married couples is to seek a limited divorce. Although Florida does not recognize legal separation, a limited divorce functions similarly to one. The court has the authority to decide on alimony, child support, and custody matters. Obtaining an absolute divorce is not mandatory for the parties; in fact, the court can revoke the terms of the limited divorce if the spouses reconcile at a later date.
Limited divorce has some drawbacks. Firstly, it requires mutual agreement from both parties, making it unsuitable for couples who cannot cooperate. Secondly, each party must file separate tax returns. Lastly, neither party is permitted to remarry while under a limited divorce.
Divorce Instead of Separation
There are multiple reasons why a spouse might opt to end an indefinite separation. One of the motivations for seeking a divorce is to address financial and property matters. The longer a couple stays separated without finalizing a divorce, the higher the chances of encountering complications in their financial dealings. For instance, if they still co-own a house and an accident occurs on the property, disagreements over liability could arise. Divorce, being a definitive action, presents the most effective means to fully settle disputes related to assets, debts, property, financial assistance, and responsibilities.
In Florida, a married woman who becomes pregnant, even while separated, may face parentage issues where her husband is automatically considered the legal father. This situation can result in the husband being obligated to provide child support and other responsibilities for a child who is not biologically his own. Resolving such cases may require the father to undergo legal proceedings, incurring both time and financial costs. While occurrences of this nature are uncommon, they can serve as a potential incentive for pursuing a divorce.
One of the most compelling reasons for seeking a divorce is to enable individuals to move forward with their lives. Remaining in a loveless marriage that is likely to deteriorate over time serves no purpose. Furthermore, the legal requirement to dissolve a marriage before entering into a new one emphasizes the importance of finalizing relationships to allow for new beginnings.
If you want to safeguard your legal rights, it's advisable to consult with a respected divorce attorney in Lakeland, whether you are in the process of getting a divorce or contemplating one. McMann, P.A., offers the competent and empathetic assistance you require.
If you have any inquiries regarding divorce or family law, feel free to reach out to our firm today to schedule a complimentary consultation.
Mark D. McMann
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