What Is Legal Separation?
Many states provide a formal legal process to facilitate a couple’s separation while still allowing them to remain married. In those states, a couple can use legal separation as an alternative to divorce. Legally separated couples live physically and financially separate lives, and in many ways the process of legally separating resembles divorce. Like with divorce, legal separation provides for:
- Property division
- Spousal support or alimony
- Payment of debts
- Parenting responsibility and child support
The primary difference between legal separation and divorce is that legal separation allows a couple to remain married. This means that neither spouse can remarry while legally separated.
There are many reasons why a couple might decide to separate but remain married, including:
- Religious beliefs
- Concerns about the impact of a divorce on their children
- Healthcare coverage
- Retirement benefits
A couple might also be unsure if they are ready to take the more permanent step of divorce. A legal separation provides a couple with legal and financial protections while also allowing them time to decide whether to reconcile or file for divorce.
In Florida, however, there is no legal process for separation. In fact, Florida is one of only six states in the United States that does not recognize legal separation.
This does not mean, however, that you and your spouse cannot reach a court-sanctioned proximate agreement that provides a legally binding structure for you and your spouse to carry out separate lives while remaining legally married. In Florida, those options include:
- Petition for support
- Postnuptial agreement
What Is a Petition for Support?
Statues 61.09 and 61.10 of Chapter 61 of Florida Statutes, which governs dissolution of marriage, support, and parenting time sharing, allows the court to grant and enforce the following outside of divorce proceedings:
- Child support
- Parenting time
These statutes provide a legal means for a spouse or parent to file a petition for support, even if they are not seeking a divorce. These same statutes allow both a married spouse who requires support and an unmarried parent to seek court-ordered child and/or spousal support and/or a parenting agreement.
While filing a petition for support allows the court to order a couple to abide by an agreement that governs child support, spousal support, and/or parenting time, it does not provide for the division of marital property. A couple’s assets and liabilities will remain unaffected by any court order pertaining to a petition for support. As such, a petition for support is only a partial means of obtaining what in other states is fully provided for as part of a legal separation.
Significantly, however, a petition for support is like a legal separation in that it has no impact on your marital status. Even if a petition for support is granted, you will remain married to your spouse. Likewise, if you later decide to file for divorce, a petition for support will not impact your ability to do so.
Even barring the issue of property division, a petition for support can be a complex and even contentious process. A qualified attorney can help you navigate the process of filing a petition for support and can help advocate for child support, alimony, and/or a parenting agreement that protects both you and your child’s best interests.
What Is a Postnuptial Agreement?
Even though Florida does not provide a mechanism by which the courts can recognize legal separation, it does recognize postnuptial agreements. Therefore, postnuptial agreements can be a means by which a couple can de facto achieve a legal separation.
Many people have heard of a prenuptial agreement, but this is not commonly the case for postnuptial agreements. A postnuptial agreement is a legally binding agreement between spouses that is entered into after the marriage commences and that can determine how your finances will be handled in the case of separation, divorce, or death.
A postnuptial agreement can cover many issues, including:
- Who will remain in the marital residence
- Whether, how much, how often, and when spousal support or alimony will be paid
- Whether, how much, how often, and when child support will be paid
- How property will be divided
- How debts will be divided
- With whom your child will primarily reside
- A plan for parenting time
It is important to keep in mind that while a postnuptial agreement can sketch out a parenting plan, parenting time or custody is still subject to review by the courts. Furthermore, an agreement that bars one parent from parenting time with their child is unlikely to be held up in court.
As with a prenuptial agreement, which is entered into prior to the commencement of a marriage, a postnuptial agreement must meet certain requirements to be considered legally valid, including:
- It must be written. Oral agreements are not enforceable.
- It must be signed by both parties.
- It must be entered into voluntarily by both spouses.
- Each spouse must provide a full and complete financial disclosure to the other spouse.
- It must be fair to both parties.
- If it includes testamentary provisions, it must be signed by two witnesses.
Additionally, in order to be considered a valid and binding contract, a postnuptial agreement must also provide a “consideration” (i.e., a right, obligation, or thing of value that is exchanged). In a prenuptial agreement, the marriage serves as the consideration, but for a postnuptial agreement, the commencement of the marriage is past and therefore cannot serve as the consideration. The consideration for a postnuptial agreement can take many forms. For example, you might waive the right to alimony in exchange for an agreed-upon sum.
To ensure that a postnuptial agreement meets all of the strict legal requirements to be considered valid, it is wise to consult a family law attorney experienced with postnuptial agreements. A qualified attorney can help you to draft a postnuptial agreement that will hold up in court. If you prefer to draft your own agreement, an attorney can review that agreement to help ensure that it is enforceable.
If you are contemplating separation from your spouse in Florida and are wondering how to proceed, our team of compassionate and knowledgeable family law attorneys at K. Dean Kataras, P.A. can help you decide the best path to set you and your family moving toward a better future.
Contact us online or call (727) 939-6113 to schedule a consultation today.