Sometimes divorce isn’t always the best option for couples with marital problems. Many couples turn to legal separation as an alternative. A separation lets couples continue receiving the benefits of marriage while living separately. Unlike most states, Florida doesn’t officially recognize legal separation. However, couples in the Sunshine State can take informal actions as alternatives to divorce. Our experienced lawyers at the O’Mara Law Group can help you understand your options and find a solution that fits your needs.
Many married couples choose divorce when they want to part ways. However, divorce may seem too final for some, or the spouses want to keep receiving the benefits of marriage while living separate lives. In these cases, couples may pursue a legal separation.
In many states, legal separation is an alternative to divorce. While Florida doesn’t formally recognize legal separation, some couples residing in the state still choose to separate instead of divorcing.
Legal Separation in Florida
While most states recognize and allow legal separation, Florida is one of the few that doesn’t. Married couples in Florida have no formal right to legal separation, and laws regarding it are absent from Florida statutes.
However, while couples cannot formally file for a legal separation in Florida, some choose to pursue this route informally.
Divorce vs. Legal Separation
In states that do recognize legal separation, the primary difference from a divorce is the end result.
In a divorce, the marriage legally ends. The shared benefits often end with the dissolution of the marriage, and assets and debts are split between the parties. Each spouse’s tax status changes, and child support and alimony orders may go into effect.
In contrast, legal separation isn’t final. The marriage is still active, even though the parties live separate lives. Because of this, couples may continue reaping the benefits of marriage, including health insurance, military benefits, and Social Security benefits.
With legal separations, couples can still file their taxes jointly, unlike in a divorce, when they must file separately. However, as in a divorce, child support and alimony orders might be implemented in a legal separation, although this varies based on circumstance.
Using an Informal Agreement for Separation
Sometimes, couples choose to remain married but live separately. Since Florida doesn’t recognize legal separations, they may use an informal agreement as an alternative.
An informal agreement often addresses key points, including equitable distribution, parental responsibility and time-sharing, and other terms relevant to the separation. These agreements require both parties’ participation, and when an agreement is executed, the couple can live as though they are divorced while remaining legally married.
Often, this benefits couples who have considered divorce but decided it isn’t best for their situation. If the couple rekindles their marriage later, they can return to living together without the need for any legal action.
It’s important to understand that the courts may not recognize informal agreements between separated couples if one spouse decides to move forward with a divorce. Unless the couple enters a legally binding and enforceable contract, the court will decide all terms if the case goes to litigation.
Using a Postnuptial Agreement for Legal Separation
Postnuptial agreements are legally binding contracts that couples may use to establish and enforce the terms of their separation, virtually giving Florida couples the benefits of a legal separation.
These agreements are similar to prenuptial agreements, but instead of drafting them before marriage, they’re drafted after the couple marries. They can be used to set various terms pertinent to the couple’s finances, assets, and debts, including property division and alimony.
Can You Still Get Alimony and Child Support if You’re Not Divorced?
Alimony and child support are often major concerns for couples seeking legal separation in Florida. State laws have definitive provisions addressing child support and alimony.
Under Florida law, spouses can apply to the court for alimony and child support if the other spouse has the ability to contribute and fails to do so. This statute applies even when a couple has not filed for divorce.
Can You Negotiate Child Custody Without Getting Divorced?
Couples entering a separation agreement in Florida can include a child custody agreement in their postnuptial agreements. However, it’s essential to understand that while these agreements may lock in certain aspects, such as alimony, they may not finalize a parenting plan.
While parents may include a parenting plan within their postnuptial agreement, this does not necessarily mean any child custody arrangements will be enforceable in court. If a custody dispute does arise or the couple divorces, a court will determine what is in the child’s best interests regardless of what the postnuptial agreement says.
Pros and Cons of Separation vs. Divorce
Separation and divorce are best suited for different scenarios, as each option has benefits and drawbacks that may sway couples to choose one over the other.
Religious reasons might be a deciding factor for some couples who choose separation over divorce, as divorcing may not align with their religious beliefs. For other couples, separation is ideal because it allows them to keep health or military benefits. Divorce usually ends such benefits.
Some couples choose to remain married but separated for their kids’ sake, while others may choose separation in the hope of reconciliation. If the couple separates and reconciles later, they can begin living together again without any legal process.
Separation may also be a viable option for couples who want to avoid the emotional rollercoaster a divorce may bring and the costs that accompany it. However, separation can present limitations, making divorce the best option in some situations.
For example, suppose a couple chooses to separate, but a year or two into the separation, one spouse finds someone they’d like to marry. Since they’re still legally married, they aren’t free to pursue marriage with another individual. If they were divorced, both individuals would be free to get remarried.
When evaluating legal separation versus divorce in Florida, couples must decide what works best for their needs and situation.
Rely on the O’Mara Law Group
Since Florida doesn’t recognize legal separations, couples may choose to negotiate an informal or postnuptial agreement. Understanding the unique features of each option is essential, as each offers different levels of protection and can significantly impact proceedings if the couple moves forward with divorce.
Postnuptial agreements can provide a solution for couples seeking to separate while remaining married, but they must contain specific elements to ensure the courts will enforce them.
Our experienced team of lawyers at the O’Mara Law Group can help you with your postnuptial agreement to ensure it offers the protection you want. Contact us at (407) 796-9246 or complete our online contact form to schedule a consultation with one of our attorneys.