Many people often ask us about “legal separation”. Often the clients that ask about this are originally from the Northeast, such as New York or Massachusetts, and the question is understandable because many states in the Northeast and elsewhere have as a requirement to divorce that the parties be separated for a period of time; often as long as a year, before they can be divorced. This is not a legal requirement in Florida as spouses may divorce in Florida without a “waiting period” often seen in other states. However, Florida has a system in place to deal with the situations where a spouse desires to be supported financially by the other spouse, but does not wish to be divorced. The system is known as Separate Maintenance. Spouses are not required to, but can also enter into separation agreements while they remain married but are living separately.
Separate Maintenance actions are gender-neutral; men have the same right to the relief as women. In a Separate Maintenance action, all of the remedies that would be available to a spouse in a divorce case, except the divorce itself, are available. A spouse may request from the court Parental Responsibility/Timesharing, Equitable Distribution, Alimony, Child Support, and any other remedy associated with divorce. Such a lawsuit could proceed to trial, where the judge is requested to make awards, or it can be settled prior to or after litigation is filed.
A negotiated separation agreement can cover whatever subjects the parties wish to include. The parties can agree that the terms of the agreement have an indefinite term (last in perpetuity), or they may define the terms to expire. They can enter into “what if” scenarios, should they wish to do so. The terms may be modified or changed at any time the parties can agree, and if they do not agree they can petition the court to modify the terms, although it is usually preferable to file for a divorce if a modification of the separation terms is contested. Those options can be spelled out in the agreement itself, or the parties may decide to leave out future options.
In short, “legal separation” in Florida does not actually exist by statute, but can be effectively accomplished as the parties can agree. If they cannot, then a court can be called upon to set the terms by a separate maintenance suit.