What is Legal Separation?
Separate from the divorce, legal separation is not a recognized process by Florida law but may be attempted if an applicant for divorce wants to gain some level of protection for such purposes as child support or alimony. The process of legal separation is similar in nature to that of a divorce but does result in a separate marital status to indicate a party has separated from the other and their marriage in accordance with religious and/or social practices.
Obtaining a legal separation means that a party must still divide property and assets and can require spousal support and/or child support orders to be created much like is done in a divorce proceeding. However , once a court issues a legal separation, it does not affect the ability of either party to pursue a divorce either during the same proceeding or a later date.
It is also important to note that a legal separation does not terminate a marriage, (even if that is the intention) and should not be viewed as a substitution for divorce. In states where legal separation is an available process, both parties are still regarded as legally married for all intents and purposes.
Divorce under Florida Law
The first step in obtaining a divorce is the filing of a petition for dissolution of marriage with the clerk of the circuit court where one of the spouses resides. The petition must be accompanied by a summons to be issued for the other spouse, and subsequently served by the sheriff or a private process server. The party initiating the case is referred to as the "petitioner," and the other spouse is referred to as the "respondent."
Florida law requires that for either party to file for divorce, one of the parties to the marriage has to have been a resident of the state of Florida for at least 6 months immediately preceding the filing of the petition. Upon the filing of the petition, the six-month residency requirement is fulfilled, and the court obtains jurisdiction over both parties.
The legal process of obtaining a divorce begins the filing of the petition for dissolution of marriage. Under Florida law, there are two possible grounds for divorce, only one of which is necessary: (1) the marriage is irretrievably broken, or (2) one of the parties is mentally incapacitated. The petitioner must allege in the petition an ultimate facts showing that the marriage is irretrievably broken. An allegation that the marriage is irretrievably broken does not have to include specific acts or omissions, and general allegations concerning the reasons for the failure of the marriage are sufficient.
If the parties are unable to reach a settlement within a short period of time after filing the petition, the court will refer the case to a private mediator or to a court mediator. Mediation is required in all family law cases unless one party is able to demonstrate to the court that good cause exists to waive mediation. It serves as a valuable tool for the court to ensure that the parties can resolve their case without incurring the expense, emotional strain, and delays involved in preparing for trial. Strictly defined by statute, mediation is defined as a ‘court ordered settlement conference’ held with a neutral person who is trained as a mediator. During the conference, the mediator does not decide the outcome of the case, but uses their skills to assist the parties in determining the various issues involved.
If the parties are able to agree on the terms of settlement, the court will enter the agreed final judgment of dissolution of marriage, and the case will be concluded. If the parties are unable to reach a settlement agreement, the case will be set for trial. The issues that are resolved at trial are identical to the issues that can be settled prior to trial. In issues involving child custody, visitation and support, spousal support, property division and debt division, the judge decides the issues raised by the parties and, in some cases, appoints a guardian ad litem who is charged with ensuring that the best interests of the minor child or children are protected. After the trial is concluded, the judge will issue a final judgment that concludes the issues of the settlement. The final judgment is a legally binding document similar in nature to a contract.
The Differences between Legal Separation and Divorce
The primary difference between a legal separation and a divorce is the status of your marriage. A divorce indicates that a court has granted you and your spouse a complete termination of your marital relationship. In a legal separation, on the other hand, you have completed some initial steps toward resolving your family law issues, but you are still married.
Legal separation becomes especially useful when you are still uncertain about whether a permanent divorce is necessary. You may be in the process of separating out your assets and obligations in a way that makes it possible for you to reengage in the relationship on a long-term basis. A legal separation helps you test the waters of a permanent divorce.
Like a divorce, a legal separation can carry many of the same legal obligations as the process of termination. In many ways, a legal separation is a temporary divorce. It allows you to divide your assets, determine parenting plans and settle alimony and child support obligations while technically remaining married.
Financial Considerations
Legal separation and divorce both have financial implications. However, they play out in different ways. Since legal separation doesn’t end the marriage, the parties remain jointly responsible for any debts accrued during the marriage. That being said, the financially stronger party tends to pay more of the expenses than the economically disadvantaged spouse.
In a divorce, courts will either decide or help couples reach an agreement on issues such as alimony, child support and how to divide property, as well as credit and debt. If an agreement cannot be reached, the courts will resolve these matters in a manner that conforms to Florida law.
Both legal separation and divorce have capital gains tax consequences. When property is disposed of, capital gains tax is a federal tax levied on the net profit (or "gain") on the sale of capital assets such as stocks or real estate. Gain derived from property acquired prior to a marriage, gifted by one spouse to the other or after the marriage separation will be taxed as individual income. The remaining gain will be considered marital property to be equitably distributed (in some cases, equally) between spouses.
Custody arrangements with children must be established whether parents legally separate or get divorced. Alimony may be awarded to provide temporary or ongoing support to an economically disadvantaged spouse. All of these issues may be resolved by the couple out of court or through mediation or litigation.
Emotional and Social Considerations
In addition to the legal implications of a legal separation versus a divorce, there are emotional and social factors that may make one option preferable over the other. Both options can carry a significant emotional burden – but the reasons for a legal separation and a divorce differ. If child custody is a particular matter of concern, or if there is an issue with spousal abuse, then legal separation becomes more appealing.
The parent who does not have primary custody may struggle to remain positive and even help with responsibilities such as financial budgeting. However, remaining separate in a legal sense will provide a measure of emotional safety to that parent. It can also free him or her from a spouse who consistently tries to manipulate their decisions and/or their relationship with their children.
Likewise, if you fear for your safety – especially if domestic violence is involved – it may be better to separate legally. Then, if the violence or manipulation persists, you will have legal recourse to remove your spouse from your home or help you get out of a dangerous situation.
However, a legal separation is not a guarantee of safety. It is imperative to speak to authorities if you ever feel threatened or believe that you are in danger.
If a couple has not been married long, or they have no children, there may be less incentive to choose a legal separation over a divorce. Not only do both partners inherit the uncertainty of a potentially painful future, but their social circles inherit the misery as well. Friends and family often want to take sides during legal separation or divorce. It does not matter how well you try to protect your social circle or how much you attempt to shield them from your problems – if you refuse to give them details or explain your choices, they will guess and speculate.
For example, they may believe that a split is truly amicable and that neither you nor your spouse wants to have a divorce . People may also take the opportunity to suggest everything from practical solutions to spiritual advice. By picking the side of a hapless friend, your loved ones may also land in ugly fights with your spouse.
The result is that in the ensuing days, weeks, months, or even years, your relationships with your family and friends may deteriorate. Your loved ones may become less willing to support your choices because they dislike your spouse. They may even grow to resent you as well. In extreme cases, they may decide that you are the one at fault or that you are actively trying to undermine your marriage. Consequently, emotions become inflamed, and your social circle begins to collapse.
This is one of the primary reasons why so many people believe that a divorce may be the better option for their relationship. It allows them to disentangle without complicating the rest of their lives with well-meaning negative influences. If a friend calls to rant about your spouse, you can easily change the topic of conversation. Divorces are generally considered to be clean breaks. While they may not be entirely devoid of issues, they are at least easier to understand than legal separations, which are often muddled by legislative confusion.
Those who separate must specify whether they are planning to include legal documents in their separations. For example, a couple may agree that they will never marry again, and legally separate themselves accordingly. A separation agreement can also allow you to designate certain assets as separate property. Such agreements can detail the distribution of communal property, child custody, and financial support.
While a poorly speculated separation can lead to interpretive difficulties, a poorly implemented one may hurt a marriage irreparably. A legal separation agreement cannot be changed without court intervention. A person who tries to alter the terms of a separation without going through the court will not only face a reluctant partner but also some serious legal consequences.
Choosing the Right Option for You
When deciding between legal separation and divorce, there are several factors to consider. Some of these factors may be difficult to think about, much less decide. Here is what you should keep in mind: First, determine what will work best for you in the short term, and long term. If you immediately need the financial benefits of a legal separation, or don’t want a divorce right now, then move ahead with a legal separation. If you can afford to wait, then think again about what is best for you and your family. If it is important to you to have a final divorce in the eyes of the law, and you and your spouse can come to mutual terms, then think hard about going through with a divorce. Second, if you do not have kids with your spouse, this choice probably won’t matter that much to you. Legal separation tends to only be a sole factor for those who cannot have children, and it is mostly for financial and health insurance reasons. For that reason, many people aren’t affected by these terms. Finally, what about the legal implications? The legal issues are mainly just paperwork, but a judge does have to approve the legal separation itself. This will also vary from county to county in Florida, so make sure you understand the basic process for where you live. If you think a legal separation is the right choice for you, make sure you talk to your lawyer first before filing. It is possible that your separation could turn into a divorce quickly, so know your options and understand what each term means for your future.
Legal Resources and Assistance
Whether you are considering legal separation or divorce, it is advisable to seek the counsel of an experienced Florida family law attorney. This is particularly true if you have children and/or are concerned about property division in the event of a divorce. An attorney can help you find the best solution to your unique circumstances and guide you through the process .
Fortunately, there are many resources available to assist you in determining if legal separation is the best choice for you. For more information on the differences between legal separation and divorce, as well as other important topics like child custody and support, property division and paternity, as well as many other issues in different aspects of family law, check out these frequently asked questions.