MARIO GUNDE PETERS & KELLEY

– Attorneys and Counselors at Law –

Brevard County Florida

Understanding Separation Agreements in Florida

man and woman contemplating separation

February 22, 2022

In the legal separation process, one of the spouses usually moves out of the house when the marriage begins to fall apart. Most often, the partners take some time apart (years in some cases) to see if they can make the marriage work. If one of them concludes that they cannot save the marriage, they initiate the legal process of dissolving it. With that said, living apart is not synonymous with a legal separation.

Not in Florida

In some states, a spouse might file a court case to attain an order stating that the involved parties are legally separated. In such cases, even though the parties will still be married, the court will issue a ruling on critical matters involving custody of the child, monetary support, property division, and spousal support. 

However, you can take this course of action only in states that accept legal separation, and Florida is not one of them. You cannot petition the court for a legal separation agreement in Florida. So, even if you live apart, the state will consider you to be married until you petition for and attain a dissolution of marriage through a court recognized by the state of Florida.  

Difference between Legal Separation & Temporary Relief

You should not confuse a legal separation agreement with a temporary relief agreement in a divorce matter if you live in Florida. When you file for a divorce, the court allows you to request temporary relief from various issues. For instance, you might temporarily need the court to resolve problems related to support, custody, and living arrangements. However, be mindful that temporary relief is a short-term solution and is not the same as a legal separation agreement. You can only file for and benefit from this relief while your divorce is in process. 

Problems You Could Face When Living Separately While Married 

If you choose to live separately from your spouse due to complications in your marriage, keep the separation period short. Otherwise, it can unnecessarily complicate your divorce proceedings when you eventually file for the dissolution of your marriage. 

Here are some common problems you might face:

Pregnancy Troubles

If the separated woman becomes pregnant while living away from her partner, the court will still consider the separated husband to be the child’s legal father. The mother, father, and the alleged father will need to file for a paternity test to conclude which man has paternal rights over the unborn child. 

Unavoidable Move to another State

Another problem that can occur if you prolong your separation is that you or your spouse might have to move to another state while living separately. It could happen because of a better career opportunity or to help an ailing parent, etc. Whatever the reason for the move, it could make the divorce process more complicated. 

Monetary & Asset-Related Complications

If you stretch the separation period for years, you might have to face debt and asset-related issues when petitioning for a divorce. This is because if you obtain an asset after separating from your spouse, the court might still deem it a marital asset at the time of the divorce, resulting in the possible division of that asset. 

Dating Problems

Florida is a no-fault divorce state, so it does not consider adultery when you file for the dissolution of marriage. However, dating other people while legally tied to your spouse can give rise to multiple complications. It might negatively affect your divorce and the child you share with the other party. If you have a legally binding marital agreement, dating another individual might be against the terms of the agreement, which could make the divorce process unnecessarily complex. 

With that said, depending on your marital agreement terms, living away from your spouse, even without a separation agreement, can further complicate your divorce proceedings.

Can You Receive Spousal Support Living Separately from Your Partner?

There are some instances in which a spouse might petition the court for domestic monetary support without filing for dissolution of marriage. For instance, if you are not financially stable and can benefit from the other party’s financial support, the court might order your spouse to pay you for domestic support. However, it heavily depends on whether your spouse can afford to pay for the support or not and what the court deems to be fair based on your case circumstances.   

Are There Any Positives to Living Separately Before a Divorce?

Here are two instances in which it is best to leave your spouse and live separately before filing for a divorce:

Domestic Violence

If you fear domestic violence or have already been subjected to it, you will benefit from leaving the marital home or filing a petition for the abusive spouse to leave the house. It will be safer for you and any children to live away from the abusive partner while you seek a divorce.

Constant Arguing & Fighting

If you find yourself constantly arguing and fighting with your spouse with the tiniest of things setting you both off, it is best to put some distance between yourselves and live separately before seeking a divorce. This is especially critical if you have children with your partner since it will help them escape the constant arguments and tension between parents. Each case is different, and only you can decide what is best for you and your children.

Contact a Divorce Attorney before Living Separately from Your Spouse

In most instances, contacting a divorce attorney before moving out of the marital home will help your case. Seeking professional advice will help you make the right decision and avoid the adverse consequences of living separately. Since Florida does not recognize a separation agreement, you will need all the guidance you can get from a divorce attorney to make the right decision for your well-being. 

Moreover, depending on your situation, an attorney will be able to file a petition for temporary relief while you go ahead with your divorce. 

 

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