Legal Separation vs. Divorce in Florida: Key Differences to Know
Law 

Ending a marriage is never easy. You may still care about your spouse but feel the relationship is no longer working. Florida allows couples to separate as an alternative to divorce legally. But what exactly is a legal separation in Florida? And how does it differ from divorce?

This guide covers everything you need to know about the key differences between legal separation and divorce in Florida. Read on to understand how each option impacts your marital status, division of assets, debts, child custody, insurance, taxes, and more.

What is a Legal Separation in Florida?

A legal separation in Florida is when a married couple decides to live apart but remains legally married. They go to court to get a judge’s approval on a separation agreement that outlines how they will divide finances, property, parenting responsibilities, and other important issues during the separation period.

The main difference from divorce is that you remain legally married after a separation in Florida. You and your spouse can reconcile or later decide to convert the separation to a divorce. The separation agreement will function as a trial run for how you would divide up assets and debts in an eventual divorce.

During the separation, you live apart and can acquire assets and debts independently. Legal separation does not allow either spouse to remarry or enter a domestic partnership with someone else. For all legal purposes, you are still married.

Key Differences Between Separation and Divorce in Florida

If you’re unsure about permanently ending your marriage, a legal separation may sound like a good compromise. But there are important distinctions between separation and divorce in Florida to weigh when making your decision:

Marital Status

The biggest difference is that divorce completely dissolves your marital status. The court terminates your marriage after a divorce. With legal separation, you remain legally married. Your marital status only changes if one spouse eventually petitions to convert the separation to a final divorce decree.

Division of Assets and Debts

Both legal separation and divorce involve dividing up assets and liabilities. Florida is an equitable distribution state, meaning marital property is divided in a fair manner based on each spouse’s contributions during the marriage.

The separation agreement will specify who gets which assets and who is responsible for individual and joint debts. If you later divorce, the separation terms regarding property may be carried over to the final divorce decree.

However, only divorce fully separates assets and debts. Any assets or debts acquired during the marriage are still jointly owned after separation.

Child Custody and Support

Legal separation and divorce address child-related matters like custody, visitation schedules, and child support. The separation agreement will specify custody arrangements and child support obligations.

These custody and child support orders can be modified later during the separation or as part of the divorce decree. The court will determine custody and support based on the child’s best interests.

Spousal Support

Alimony, or spousal support, may be awarded during a legal separation or divorce in Florida. The purpose is to financially help the lower-earning spouse maintain a similar standard of living.

Factors like the length of marriage, each spouse’s income and education, and marital standard of living determine alimony eligibility and amounts. Spousal support orders can be modified after a separation.

Insurance and Benefits

Insurance coverage is often impacted when a marriage ends. If you divorce, your spouse must obtain their own individual health insurance policy. With a legal separation, you may elect to keep your spouse on workplace or individual insurance plans. Check policy terms, as some insurers treat separation and divorce the same for coverage purposes.

Other benefits like Social Security, pensions, and tax filing status may also be affected differently by separation vs. divorce. Consult professionals to understand these implications.

Taxes

Filing taxes is one major area where separation and divorce have different outcomes in Florida. If legally separated, you still have the option to file joint income tax returns as a married couple. Filing jointly often results in lower overall taxes.

But once divorced, you can only file as single or head of household. You lose the tax benefits of married joint filing status after a divorce.

Inheritance and Estate Planning

When married, Florida law provides for a surviving spouse to inherit assets in the absence of a will. Intestate succession rules do not apply if you are divorced.

With legal separation, your spouse remains your legal next of kin for inheritance purposes should one spouse die without a will during the separation period. Update your estate plan to reflect your separated status.

Consult an estate planning attorney to ensure your separation agreement aligns with your overall estate plan. This can help avoid disputes over inheritance and probate issues if one spouse dies after legally separating.

Reasons to Choose Legal Separation in Florida

Why would you seek a legal separation instead of divorce in Florida? Here are some common reasons couples pursue separation first:

  • You are unsure about fully terminating the marriage
  • Your religious beliefs do not permit divorce
  • You want to maintain health insurance or certain tax benefits
  • You need to meet Florida’s residency requirements to file for divorce
  • You have ethical objections to divorce
  • You need time apart to sort out divorce agreements
  • You hope to reconcile eventually after a separation period
  • You want to preserve retirement or Social Security benefits

If any of these resonate, legal separation may be preferable to immediately filing for divorce. Some couples start with a separation agreement and then later finalize the divorce once they meet divorce eligibility rules.

Key Steps for Legal Separation in Florida

If you decide to pursue legal separation in Florida, here is an overview of the process:

  1. Consult an attorney – Hire a family law attorney to advise you on separation vs. divorce. They will help craft your separation agreement.
  2. Establish residency – To file for separation in Florida, you must have lived there for at least 6 months. Temporary absences do not affect residency status.
  3. File separation forms – You or your divorce attorney will petition for legal separation by filing forms with the court. This includes your proposed separation agreement.
  4. Attend hearing – The judge will hold a hearing to review and approve the separation terms and orders. Both spouses must attend the hearing.
  5. Final separation order – Once approved by the judge, the separation agreement becomes a legally binding court order. You must adhere to its terms during the separation.
  6. Live separately – During the separation period, you will live apart and follow the court mandates regarding property, support, parenting time, and other matters outlined in the separation agreement.
  7. Reconcile or divorce – At any time, you and your spouse can decide to reconcile and dismiss the separation order. Or you can petition to convert the separation to a final divorce decree.

Consulting an experienced Florida family law attorney can help guide you through deciding between separation or divorce and ensure the separation agreement protects your rights and interests.

Questions About Separation vs. Divorce in Florida? Talk to a Family Lawyer

Ending your marriage can be emotionally and legally complex. Whether considering legal separation or divorce in Florida, it’s wise to speak to a family law attorney first.

Vollrath Law, based in Florida, offers compassionate legal guidance to clients facing separation or divorce. Contact their firm today to schedule a consultation. They will answer your questions and help you make informed choices about separation vs. divorce in Florida.

News Reporter