In short, you cannot get legally separated in Florida. Some states have a special legal status called “legal separation” but Florida does not. Separation in Florida simply means a married couple that does not live in the same household. Yet, that status has no legal effect on its own.
Most people who inquire about a legal separation are, in fact, looking to draw a line in the sand as to when their newly acquired property no longer is marital.
To invoke rights in court between you and your partner you must file a petition for dissolution of marriage.
In the alternative, without filing a petition for dissolution of marriage you could prepare a written agreement between you and your spouse which would spell out the terms of your separation. Typically, this agreement’s primary purpose would be to identify what property will marital and what property will be considered non-marital (usually all newly gained property).
“The cut-off date for determining assets and liabilities to be identified or classified as marital assets and liabilities is the earliest of the date the parties enter into a valid separation agreement, such other date as may be expressly established by such agreement, or the date of the filing of a petition for dissolution of marriage. The date for determining value of assets and the amount of liabilities identified or classified as marital is the date or dates as the judge determines is just and equitable under the circumstances. Different assets may be valued as of different dates, as, in the judge’s discretion, the circumstances require.” Fla. Stat. Sec. 61.075(7)
So, in Florida, to be legally separated as other states contemplate the term, you must have filed for divorce or enter into a written separation agreement with your spouse.
No amount of evidence of intention to separate will draw that line in the sand that stops property from becoming marital. Whittlesey vs. Whittlesey, 954 So. 2d 1231 (Fla. 2d DCA 2007).
The filing of a petition for dissolution of marriage can also be important in fixing the valuation date of marital property. For example, if one party keeps the marital home and buys the other party out, the filing of the petition for dissolution will determine the valuation date of that property when calculating the buy-out amount.
The other reason people inquire about legal separation is when they are seeking support from their spouse but have not filed for divorce yet.
Florida law does allow you to file for support without seeking a divorce. “Alimony and child support unconnected with dissolution.—If a person having the ability to contribute to the maintenance of his or her spouse and support of his or her minor child fails to do so, the spouse who is not receiving support may apply to the court for alimony and for support for the child without seeking dissolution of marriage, and the court shall enter an order as it deems just and proper.” Fla Stat. Sec 61.09
Once the divorce is filed, all claims for support will then come under the divorce filing and not the section 61.09 filing.
A spouse in another state or even another country can file a motion for support against a Florida resident. Boccarro vs. Pinto 912 So. 2d 57 (Fla. 1st DCA 2005). That filing, though must be in the county where the Florida resident lives. So if the Florida spouse lives in Naples, Florida, the filing must be made in Collier County, Florida.
In conclusion, legal separation does not exist in Florida but there are many legal options available in Florida that allow you the same benefits as a legal separation. Contact my office in Naples, Florida to learn more about these options and if any of them are a good fit for your situation.