What is Legal Separation in Florida
Before we delve into the step-by-step process of obtaining legal separation in Florida, it is essential to understand what legal separation entails, its implications under Florida law, and how it compares to divorce or annulment. Legal separation is not a commonly understood concept in Florida. In fact, Florida does not have a "legal separation" status for married persons. There are states that acknowledge this status and legally divide couples while they are separated. These arrangements are often informal and may not involve the courts. Rather, separated couples often arrange custody, support, and asset division on their own. However, separation does not terminate marriage like a divorce. In Florida, a "separation" does not change the legal status of the couple. In other words, you will still be regarded as each other’s spouse, and no court will grant you a "divorce". Obtaining a legal separation or going through divorce, in most circumstances, would have the same effects. Couples must divide assets, custody, and finances. A court can enforce these rights and obligations , whether the couple is separated but still married or is divorced. The notion of separation, which is commonly misperceived as an adjustment to separation of assets and obligations, doesn’t create a status change in Florida. This is why Florida courts do not recognize legal separation in the way some other states do. Overall, legal separation is not a practical reality in Florida. However, it is often a precursor to divorce, as couples may try to create some distance and address some of the concerns that may lead to divorce before invoking the help of the court. The rationale for legal separation allows couples to resolve some divorce-related issues like child custody, asset division, and spousal support while leaving the door open for reconciliation. Some people may also want the legal protection of being legally separated, rather than either continuing in their marriage or getting a divorce. Since legal separation is more of a personal choice in Florida, it is important to talk with your spouse about the process before taking the first step. As with many cases, talking with a family law attorney may be the best option.
Requirements for Legal Separation
To move forward with filing a legal separation, you or your spouse must first meet the eligibility requirements set forth by Florida law. In general, you or your spouse must have been a Florida resident for at least six months prior to filing. Furthermore, legal divorce or annulment proceedings filed elsewhere cannot be pending.
Before filing for legal separation, you and your spouse must also be legally married. As stated in F.S. 61.101, the term "marriage" refers to "a relationship between persons, as defined by statute, which is recognized as obligatory by the State and may be severed only in accordance with the laws of the State." As Florida only recognizes one legal marriage, if either spouse has remarried, then neither spouse can seek a legal separation.
In addition to the eligibility factors above, you or your spouse must have lived separately without cohabitation, or must live separately in the same residence, for at least one year before petitioning the court for a legal separation.
Additionally, if at the time of filing one or both spouses have minor children, then that spouse will not be able to file for legal separation unless the following factors are in place: If you wish to seek a legal separation and find that you meet eligibility requirements, consult with an experienced Tampa divorce and family law attorney to walk you through the process.
Drafting the Necessary Legal Paperwork
Filing for legal separation in Florida requires the completion of specific legal documents. The most essential forms for filing a legal separation are the Petition for Dissolution of Marriage and, if there are minor children involved, the Family Law Financial Affidavit. These documents are filed with the Circuit Court located in the county where either you or your spouse have resided for six months prior to filing for separation.
Obtaining the documents needed to file for legal separation is relatively simple. The Florida Bar Association’s website offers downloadable blanks for most of the necessary documents. Alternatively, Florida Divorce Forms Publishing is the official publisher of dissolution of marriage forms in Florida. Individuals filing for divorce can order a package by mail or online. [Note: This service is useful and allows individuals to print the forms, complete them by hand and file them at the Courthouse for a fee of $25.00. I am not able to personally endorse this service but I’ve heard good things about it.] Your local library will also have copies of standard divorce forms. They can be completed by hand and then photocopied onto white paper before filing with the clerk of court.
Filing a Petition for Legal Separation
To file for legal separation in Florida, a Petition for Legal Separation must be filed with the local circuit court. The Petition is a legal document that formally requests the court to grant the separation and establishes the terms regarding asset division, alimony, and other relevant issues. The filing of the Petition for Legal Separation initiates the legal process to obtain a legal separation.
The Petition for Legal Separation must be filed with a filing fee, which varies depending on the county in which the Petition is filed. For example, if the Petition is filed in Miami-Dade County, the filing fee is currently $410, while the filing fee in Dade County is only $301. When filing for legal separation in Florida, one must be cognizant of the filing fee and be prepared to pay it upon filing the Petition. The filing fees may be more than the filing fees for divorcing your spouse.
In addition to the Petition for Legal Separation, one may need to fill out and file additional forms, depending on the county of residence. For example, a Family Law Cover Sheet may need to be filed by the Separation Petitioner, along with the Petition for Legal Separation, prior to the Petition being reviewed by the Court. In most counties, Separation Petitioners are also required to fill out a Civil Cover Sheet and a Notice of Confidential Information Within Court Filing when filing for legal separation.
The processing time for a Petition for Legal Separation also varies by county. Many counties will perform a Judicial Review to determine whether or not the Petition for Legal Separation fulfills the requirements set forth by law. In some courts, including Broward County, petitions for legal separation are reviewed by a clerk prior to being assigned to a judge. However, in other counties, such as Palm Beach County, the Petition is not reviewed at all.
The Judicial Review process can take anywhere from a few hours to a few weeks, depending on the case load of the clerks or judges, and the specific filing requirements of the county. The Judicial Review process will determine whether or not the Petition meets the basic requirements of the law. If the petition is determined not to fulfill the requirements of law, it may be rejected altogether, or you may be required to attach a summons and order to the Petition before it is reviewed by a judge.
The Role of Mediation and Settlement
When filing for legal separation in Florida, mediation plays a crucial role in reaching an agreement that is satisfactory to both parties. Mediation seeks to find common ground by encouraging separated spouses to make compromises on certain issues in order to prevent long and lingering litigation. The Wayne R. Roberts Family Law and Mediation Center at the University of Florida has always had a strong emphasis on mediation as an alternative to litigation for cases of legal separation. If parents can agree on some details regarding visitation and parental responsibilities, an attorney representing either spouse can draft a parenting plan for approval by the court, thus setting aside an agreement between the separated spouses outside of court . In some cases, a mediator is used in a court setting where the judge will not sign off on a divorce settlement agreement. When both spouses have attorneys, each will select a mediator and all four people can work to craft a new marital settlement agreement that is more likely to be approved by the judge. Mediation can also be useful in pre-litigation stages when spouses know they are headed for legal separation but wish to remain cordial in the interim. Divorce mediation is not possible in cases involving domestic violence, spousal abuse or severely high net worth.
Financial and Custody Issues
As part of a legal separation, you will need to agree on who is responsible for what in terms of managing household finances and any dependents you have. This is normally handled through spousal support and child support. The specifics of support paid are usually outlined as part of a settlement agreement. In the absence of an agreement, a family law judge will make the determination of child support obligations and spousal support and breakdown of joint and individual property. Judges consider several factors when deciding such issues, such as: If a couple has children, the determination of visitation and custody is the primary factor after financial aspects of the separation. Here, basic legal needs of the children are addressed, such as health care, education, safety and security of the child. Like most states, Florida has provisions for the protection of children through a parenting plan or parenting agreement. This includes time-sharing of the children, visitation, child support, recurring expenses, tax exemptions, and education commitments. Both parents will be obliged to cover their portion of the support payments. Notice that child custody is not decided in a legal separation. Though the process is similar to divorce, custody is still handled by the parent or through a court order.
Completing the Legal Separation
The legal separation process for a Florida resident does not end once the separation agreement is signed. If the parties are going to abide by the terms of the legal separation agreement, the court system may not necessarily be involved any further. In addition to the agreement, however, either party may file the request with the court to finalize the legal separation. The dissolution of marriage law has no specific procedures for the legal separation. However, the Florida Family Law Rules contain rule 12.610 which sets out the procedures for securing the finalization. Proceeding under that rule, any party to the separation agreement can proceed to put the agreement before the court for consideration as a judgment. If both parties are willing to sign the agreement, the judge may hold a hearing, or even more frequently, the judge may accept affidavits from the parties confirming the terms of the agreement. If both parties and the judge are in agreement as to the terms of the separation, then the judge may sign the final judgment. It is important that the agreement be sufficiently specific so that it outlines all of the rights and obligations of the parties and so that it contains all of the requirements necessary so that when it goes out as a judgment, it is enforceable. If the parties do not agree, then there may be a contested hearing in front of the judge. The judge may hear testimony from each party as to what the terms of the agreement should be and after having considered the testimony, the judge will enter final judgment. Again, a disputed agreement should be sufficiently detailed so that it actually reflects the terms of the agreement.
Legal Separation vs. Divorce: What’s the Difference
In Florida, there is no legal separation. Many spouses are under the misconception that there is a "trial run" before the divorce process, which is known as a "legal separation," but that simply isn’t the case. If you physically separate from your spouse and live in a different location, there is no official Florida process in which you can apply for or receive a legal separation.
This, however, isn’t to suggest that you shouldn’t consider formally separating from your spouse before officially filing for divorce. Here are some of the major factors that you and your spouse both need to consider when choosing between a legal separation and divorce:
When you separate from your spouse with the intent to eventually finalize your divorce, you can begin divvying up responsibilities (both financially and with children) in a way that you’d like them to be divided if and when you do follow through with a divorce after the trial period of separation.
Separating also has the benefit of allowing you to prepare for the divorce process. One of the major mistakes people make when filing for divorce is not preparing themselves financially for the upcoming legal battle (in the form of lawyer’s fees and necessary child support payments , among other things). After you’re physically separated from your partner, it can become a lot easier to create a budget, find a new job and explore new housing options.
Filing for divorce and undergoing the process can become quite costly. In many circumstances, women will file for a divorce, thereby opening the door to a financial windfall. In other cases, the same types of judgments can have an adverse effect on your situation. Many times, women (particularly stay-at-home mothers) will file for divorce and struggle with their finances because of the financial stressors that divorce presents.
In either case, it may benefit you to "try out" the separation period financially by making sure that you can survive on your own as you prepare for the impending divorce.