Spousal Separation in Florida

June 5, 2015

Florida law does not provide for legal separation, and Florida does not recognize the status of “legally separated.” Instead, a couple that wants to physically separate without formally divorcing has to use several different Florida laws to settle their affairs.

There are many reasons that a couple may not want to divorce. For example, they may have religious objections, or may want to preserve benefits available only to married couples, such as family health insurance plans, pension benefits, or social security benefits. They may also be going through a trial separation with the hope of reconciliation.

Most states recognize legal separation, but Florida does not. Legal separation permits a couple to resolve some issues, such as property division, child custody, alimony, and child support, without going through the divorce process and formally ending the marriage. In Florida, spouses may sign separation agreements, or may petition the court to settle child custody, alimony, and child support issues.

Separation Agreements

Separation agreements, or postnuptial agreements, are contracts between spouses. They can cover issues such as who lives in the marital home, who pays the couple’s debts and bills, child custody, child support and alimony payments, and dividing the couple’s money into separate bank accounts.

A separation agreement is not a court order and is not considered a legal separation in Florida. Instead, it is a legally binding contract between the spouses. This means that if one party does not comply with the terms of the agreement, the other spouse may take him or her to court for breach of contract. However, the court does not approve a separation agreement, and does not resolve disputes in the formation of the agreement.

Child Custody

During a marital separation, a couple with minor children may file a motion in court to resolve child custody issues. The court may establish:

  • A primary residence for the child
  • A support order
  • A parenting plan, which outlines each parent’s duties and rights, and includes a timesharing arrangement

Child Support and Alimony

If a spouse is residing apart from his or her spouse and minor children, one spouse may file a Petition for Support Unconnected with Dissolution of Marriage. This petition may only be filed if the couple has not filed for divorce and one spouse is entitled to alimony or child support, while the other spouse has not been paying.

The court can then enter an order for alimony and child support. An alimony order requires that the payee spouse have an actual need and the payer spouse have the ability to pay. The court may order alimony even if there are no minor children. Alimony may be permanent, bridge-the-gap, durational, lump sum, or rehabilitative.

There is no court-ordered property division in Florida without filing for divorce.

Limited Divorce

One more option in Florida is the limited divorce, which is similar to a legal separation. The grounds for a limited divorce are cruelty, desertion, or voluntary separation. In a limited divorce, the court can establish a primary residence for the children, establish visitation, and order child support and alimony. The parties are still legally married, so they cannot remarry.

If you and your spouse decide to separate without a formal divorce, there are still many complicated issues to be resolved. Please contact West Palm Beach family law attorney William Wallshein for a free initial consultation.