Your marriage is in trouble. You and your spouse are fighting all the time, and there’s a serious question of whether you two have a future together. If you separate, a divorce may not be far behind. However, some couples choose to remain separated indefinitely. At Orlando Family Team, we can explain the differences between divorce and separation along with other options to help you make the right choice.
Separation And “Legal” Separation
When spouses begin living apart from each other, they are considered separated. One of the most common misunderstandings about Florida’s domestic laws is the concept of “legal” separation. Although other states have this, there is no such thing as legal separation in Florida. But that doesn’t mean that there are no legal benefits to being separated. In fact, separating from your spouse opens the door to pursuing alimony, child support, and custody. And none of those require obtaining a divorce.
One way that spouses can determine how children and assets will be managed after they separate is to enter into a separation agreement. Although courts don’t approve or resolve differences involving separation agreements, they serve a useful purpose in managing issues between the still married spouses.
Why Have A Separation Agreement?
The parties can voluntarily agree to certain binding terms that apply during their separation period. For instance, they can agree on:
- Child custody and child support
- Spousal support benefits
- Who is distributed certain marital assets and debts
- Who gets to continue occupying the marital residence
A judge does not have to agree to let the spouses live separately before they enter a separation agreement. The spouses can agree to most things provided there is no public policy exception (e.g. they cannot waive child support). A separation agreement does not end the marriage, and the spouses could potentially reconcile.
If the spouses do divorce, a court has the power to re-examine all terms the parties agreed to. In other words, the court is not bound, upon divorce, to allow the spouses to operate as they did during their separation period.
We Can’t Agree To A Separation Agreement; Now What?
Separation agreements are wonderful tools where the spouses can agree to terms. Where they can’t, one spouse may need financial support or assistance from the spouse who has moved out. For this reason, a spouse may file a Petition for Support Unconnected with Dissolution of Marriage. That’s a court filing that allows a spouse to seek child support and spousal support without asking for a divorce. A spouse can also ask the court for help in resolving custody or visitation problems while they are still married but living apart.
Why a Separation Instead Of Divorce?
If a couple separates, it may seem like a given that they will ultimately divorce. But this is not always true. Some couples choose to remain indefinitely separated for the following reasons:
- Religious (many religions disapprove of divorce but permit couples to separate)
- Health (divorce terminates spousal healthcare benefits, but those can be maintained during separation)
- Military (benefits accrue after ten years of marriage, including the time the spouses are separated)
- Social Security (similar benefits accrue after ten years of marriage as well)
- Taxes (a separated but still married couple can continue filing their taxes jointly and receive certain benefits and deductions)
Or, the couple may put off divorce because they are still trying to work out their differences. Maybe they’re just not sure what to do and there’s no push to get divorced.
Reasons for a Divorce, Instead of Separation
On the other hand, there are several reasons a spouse may decide not to continue indefinite separation. A few of the reasons to file for divorce are:
To resolve finances and property. The longer a couple remains separated but not divorced, the more likely it is that issues will arise to further complicate their financial relationship. For example, if they continue owning a house together and someone gets hurt on the property, there could be a dispute over liability. Because divorce is final, this is the surest way to totally resolve disagreements over assets, debts, property, financial support, and obligations.
To avoid potential parentage issues. In Florida, if a married woman gets pregnant – even while separated – the husband is considered the presumptive father. As you can imagine, this may lead to an unexpected complication: the father would be required to pay child support and otherwise be responsible for a child that isn’t his. This forces the father to take legal action (costing time and money) to contest paternity in court. While cases like these are rare, they add potential motivation to seeking divorce.
To move on. Maybe the strongest reason that a spouse has to divorce is so that person can move on with their life. There’s no sense in being tied down to someone you don’t love, in a relationship that will only become more difficult with time. Also, you can’t remarry unless and until you divorce your first spouse. Divorce adds the necessary finality that people need to end one chapter and begin the next.
What Is A Limited Divorce?
Still another option for spouses is to obtain what’s called a limited divorce. While Florida does not have legal separation, the limited divorce operates essentially as one. The court can determine alimony, child support, and custody. The parties are not required to obtain an absolute divorce; in fact, the court can reverse the limited divorce terms in the future if the spouses reconcile.
There are a few disadvantages to limited divorce. First, both parties have to agree to it, so it’s not the best option where spouses cannot get along. Second, the parties have to file individual tax returns. Finally, neither can remarry during the limited divorce.
Contact An Orlando Divorce And Separation Attorney Today
Divorce and separation are complicated, and Florida offers spouses a number of ways to handle them. No matter which option you choose, let Orlando Family Team guide you through the process. Call us today to discuss your case.