One of the most significant differences between divorce and legal separation is that not every state permits couples to file for a separation. Couples in every state have the option to file for divorce, which allows the court to decide major divorce-related issues and terminate your marriage. In the end, both spouses are free to remarry.
Legal separation mimics a divorce proceeding in that the parties can ask the court for orders determining child support, child custody, property and debt division, and spousal support. The key difference between the two procedures is that at the end of the separation process, the couple is still legally married, meaning neither can remarry until at least one person asks the court to convert the case into a formal divorce. Both processes address the same legal issues, like custody, but only divorce permanently alters your marital status.
When you announce your engagement, your friends and family rarely ask you why you decided to get married. However, when you and your spouse end your relationship, everyone suddenly becomes invested in the reasons “why?” Couples who choose to separate rather than to divorce legally do so for a variety of personal reasons. For example, divorce often carries with it a social stigma of failure or shame, which can positively influence some to utilize the separation process rather than to divorce.
For couples committed to their faith, a legal separation may be the only option permitted by the church or religion they practice. Or, you may be motivated to skip the divorce action to keep access to essential health insurance or federal tax benefits.
In some situations, the spouses may believe there’s still a chance for reconciliation, and divorce may be too permanent of an option. The truth is, there’s no right or wrong answer.
No, Florida is one of a handful of states that doesn’t offer legal separation as a formal legal process. Within the state, spouses can live separate and apart from each other without the need for a court order, which can be beneficial if you wish to avoid divorce for religious, social, or financial reasons. If you’d like a formal agreement with your spouse, you might be able to achieve it by using some of the state’s other statutes.
If you have children and are living apart, either spouse can ask the court for guidance on custody, visitation, or support issues. Spouses can jointly draft a separation agreement that addresses the issues, but because it’s not recognized or approved by the court, if either spouse chooses not to follow the terms, there’s no way to enforce it later.
Another option is to file a formal petition (request) for support unconnected with dissolution, which allows one spouse to receive child and spousal support from the spouse who moved out of the marital home, without filing for divorce. This request would address the issues relating to support, but not custody and time sharing. If you’d like a court order regarding custody, you’ll need to ask the court to establish your child’s primary residence.
If you and your spouse agree to the terms of your separation, you can create a postnuptial agreement, which specifies the terms and conditions for property and debt division, spousal support, and other issues if your marriage ends in divorce. Couples can draft postnuptial agreements any time after the marriage, and the court will enforce the document if each spouse signs it.
Divorce is a permanent legal process that takes time and money. If you aren’t confident that divorce is the right path for you, you might want to consider a trial separation, which is where you and your spouse live apart to reassess your marital situation before asking the court for help. In most cases, couples can orally agree to the terms of the trial, like an expiration date, custody, or support matters. If you aren’t comfortable with a verbal agreement, you can put your terms in writing.
Parties can think of a trial separation as a “dry run” for divorce, and if it’s not what you want, you can reconcile. If your trial resolves your marital issues, either spouse can ask for a divorce.
In states that recognize legal separation, a separation agreement is a legally binding document that contains the terms and conditions of the separation. In most cases, the couple will address property and debt division, custody and parenting time, and support issues. Once the court approves your arrangement, it becomes a court order, meaning neither spouse can stray from the terms without asking the court to modify the document.
Florida doesn’t recognize separation agreements (except postnuptial), but that doesn’t mean that you and your spouse can’t specify the terms of your arrangement in writing. If you want to live apart but stay married, you can negotiate the terms of your separation, (like how you’ll handle custody and visitation, and who should pay the marital bills) and put it in writing. Although the court doesn’t review or approve the document, most spouses are more likely to abide by a written agreement rather than a verbal one.
When it’s time for the judge to decide custody of your children, the court’s only concern is whether the outcome protects the child’s best interest. The court may use your written agreement to evaluate whether the current custody arrangement should continue, but the judge will also consider a variety of other factors before deciding on the best custody and time sharing arrangement for your family. For example, if you left the marital home without a custody or visitation arrangement and you failed to support your children during the separation, the court might not find it beneficial for you to be the primary caretaker of the children.
If you have questions, you should contact a local divorce attorney for advice.