Some benefits will specifically exclude legally separated spouses from eligibility. A divorce attorney with experience handling legal separations can explain to you the pros and cons of legal separation vs. You should also consider talking to a financial planner or accountant to help understand the financial ramifications of legal separation.
Legal Separation Definition
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Florida Legal Separation Vs. Divorce
Legal Separation vs. This does not mean, however, that separating from your spouse is not without benefits. In addition, there are other ways in which you may be able to achieve the results of a legal separation despite its nonexistence in Florida. In the states that provide it, a legal separation is a proceeding that mimics a divorce proceeding in that parties can ask the court to enter child support orders, make custody determinations, and order that one spouse pay the other spousal support.
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At the conclusion of the legal separation, the parties are living separate from one another. The main distinction between a legal separation and a divorce, then, is that at the conclusion of the divorce, the marriage is ended.
Legal Separation in Florida
In a legal separation, the parties remain married. While a legal separation is not the solution for every distressed marriage, in some cases it provides additional benefits and protections to one or both spouses that would not be available to them if they simply filed for divorce.
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Florida couples are free to separate from one another at any time during the marriage and may do so without providing any notice to the other or filing any document in court. Because there is no law providing for legal separation in Florida, the court does not need to become involved in the case of a couple that wants to live apart. Each spouse is paying the expenses of his or her own household and the two partners no longer have joint bank accounts and do not open accounts for credit or deposit jointly.
If the couple has children, the children are living with one of the separated parents and may be visiting the other parent according to a schedule. One word of caution to couples wanting to separate: be mindful of the residency requirement for filing divorce in Florida.
Problems When Living Apart While Still Married
You or your spouse must have been a resident of Florida for at least six months immediately prior to filing for divorce in Florida. If you separate and the two of you move outside of Florida, you cannot file for divorce in Florida unless one of you returns and reestablishes residency for a period of at least six months. While legal separation is not defined or discussed in the Florida statutes, the concept of obtaining child support without a divorce action is so discussed.
There is no requirement that a divorce be filed or even be contemplated in order for a court to consider and rule upon such a motion, even though child support is a frequent feature in many Florida divorces. Obtaining alimony apart from a divorce tends to be much more difficult to obtain. Although the same statute authorizing child support absent a divorce also authorizes alimony without a divorce, in practice it appears courts are not as willing to award alimony in these types of cases.
If you are concerned about providing for yourself in the event you and your spouse separate, you may wish to consider entering into a prenuptial or postnuptial agreement with your spouse. A prenuptial agreement is an agreement between two people prior to their marriage; a postnuptial agreement is one entered into after the two people have been married. Florida law requires both prenuptial agreements and postnuptial agreements to:.
If a breach occurs, what is the non-breaching spouse entitled to do? The more detailed you make your agreement assuming your spouse is willing to agree to the terms, of course the uncertain your separation will be. Although you can draft a postnuptial agreement yourself, it may be best to have an attorney draft the agreement for you.
This will help ensure the agreement conforms with statutory requirements and is enforceable. You are considered to be separated from your spouse when the two of you are maintaining separate residences, paying your own separate expenses, and are not commingling funds in a joint account. Child support petitions are generally granted, whereas petitions for spousal support are not often approved where the parties have not filed for divorce.