The most important thing to remember about legal separation in Florida is that Florida is one of a handful of states that does not actually recognize legal separation. That can be both a blessing and a curse, depending on how you look at it. While it avoids the often-lengthy requirement of legal separation that still exists as a prerequisite to divorce in some states, it also takes away one of the potential alternatives to divorce that sometimes results in reconciliation. While Florida does not recognize legal separation, that does not mean you cannot accomplish the same things through different approaches. If you are considering divorce but have not yet made the decision as to whether it is the right path for your family and your needs, finding a way to make separation work is a possible step in determining what direction your family should take. There are some important considerations to keep in mind when it comes to separation in Florida, and a Florida family law attorney who focuses on divorce can help you understand more about what options separation potentially holds for you.
Common Reasons for Seeking Separation
While it is true that every marriage is unique and comprised of individual circumstances, there are some common reasons married couples seek separation. There are many scenarios in which separation offers an alternative solution, some of which may even help you overcome challenges and obstacles in your marriage that led you to consider divorce.
Unfortunately, the nation is struggling with problems surrounding addiction and other issues related to substance abuse. If a substance abuse problem or financial issues related to addiction like gambling arise in a marriage, some spouses choose to pursue a form of separation to give the affected spouse the opportunity to seek help and curb certain tendencies that may be draining energy, finances, and/or other resources from the marriage. Often, such circumstances will result in an agreement to separate for a given period of time and reevaluate the marriage after that time period has expired.
Physical separation also helps individuals realize what divorce might look like for them. What effect will the financial obligations of divorce have on you? What is the overall state of your financial health? How might time-sharing look for you and your children? Can the problems in your marriage be overcome? Will counseling and/or mediation be enough to bridge the divide that has led you to consider divorce. Physical separation puts each spouse in a position to answer these and other questions, and that can help a family determine whether divorce is the right move for them.
Sometimes, tax liabilities are another reason for seeking separation in lieu of divorce. In cases where couples do not want to go through the rigors of the Florida divorce process, separation may still enable them to claim certain tax-related benefits of being married. If individuals are considering separation for this or similar financial reasons, it is important to use the assistance of a lawyer to make sure that any arrangements do not run afoul of state and federal laws – including those related to taxes.
In the absence of recognized legal separation, there are some alternatives that can often help achieve the same goals. With a postnuptial agreement, you and your spouse can come to an agreement on various forms of support payments and other concerns related to the marriage and separation. Such an agreement can be presented to a court and is enforceable should one of the spouses violate the terms within it.
While an established approach to separation and potentially solving problems that could be facing a marriage, postnuptial agreements are still a relatively new vehicle for married couples to use. Like prenuptial agreements, Florida has strict requirements when it comes to postnuptial agreements that include:
- Postnuptial agreements must be in writing;
- The agreement must be signed willingly by both parties absent any duress or coercion; and
- The agreements must contain a full and clear disclosure of assets and liabilities for both parties.
If these requirements are not met, you risk having such an agreement invalidated and in some circumstances, a court could retroactively enforce certain terms contrary to such an agreement if the agreement is determined to be void. Even if only a small portion of the agreement is found to be invalid, a simple oversight can risk the entire agreement being thrown out.
It is important to keep in mind that a full financial disclosure includes full knowledge of all assets and liabilities for both spouses. You cannot hide a secret savings account or conveniently forget to add your retirement account to the assets contemplated in this kind of an agreement. Likewise, you cannot force a spouse to accept certain terms in such an agreement by threat of leaving him or her with nothing or taking other adverse action against your ex. Making sure these agreements comply with the law is an important step in ensuring that they can serve the needs of your separation adequately, or meet the goals you have for entering into such an agreement if it is for reasons other than separation – like protection of an individual inheritance or preservation of assets for children from another marriage.
Considering separation as a way to avoid obligations related to child support and/or potential spousal support obligations is not a good approach and probably not an effective approach to dealing with the potential financial impact these support payments can have. Even if a married couple has not officially filed for divorce, a Florida court may still have the ability to order these types of support payments regardless of the nature of the reason why married individuals have chosen to live apart.
When it comes to Florida divorce, it is important for you to weigh your options. Divorce is not a decision most people take lightly, and sometimes separation can provide an opportunity for couples to explore whether divorce is the right decision for their family. If you are considering divorce and want to know more about how separation works in Florida as well as what options might be available to you in exploring the divorce process, contact Scott J. Stadler to schedule a consultation and find out more about how he can work with your family to find the Florida family law solution that best meets your needs.