You and your spouse are not sure whether your marriage is over, but it is on the rocks and one of you has moved out of the marital home. You want time to consider whether divorce is right for you, and you want to make sure your financial rights are settled and a parenting plan is in place during the separation period.
Some states include legal separation in their statutes as a way to settle these issues and provide a path to divorce if you choose. But legal separation does not serve as a path toward divorce in Florida the way it does in other states.
Legal separation in Florida vs. other states
In some states, if you legally separate, you and your spouse can execute a separation agreement that is approved by the court. Issues such as property division, child custody, child support and alimony can be included in the separation agreement and are legally binding while your divorce is pending.
In some states, a legal separation can even serve as grounds for divorce. After a certain number of months have passed per state statute, that separation agreement can be transitioned into a divorce decree, and your divorce will be finalized.
Many states also have waiting periods to divorce. For example, you may need to be separated from your spouse for six months before you can file for divorce or your divorce can be finalized.
This is not the way it works in Florida. In Florida, there is no separation requirement or waiting period to file for divorce, although once filed, 20 days must pass before your divorce can be finalized.
Legal separation is not recognized as a ground for divorce in Florida. The only grounds for divorce in Florida are the irretrievable breakdown of the marriage or, under limited circumstances, mental incapacity.
Another option: post-nuptial agreements
While a quick divorce may seem ideal, divorce is not necessarily something to rush to complete. It can take a while to resolve all of your divorce legal issues in order to reach a mutually agreed-upon settlement or to complete the divorce litigation process if it comes to that.
You will want to have some affairs in order if you are separated and contemplating divorce and while your divorce is pending. One way to do this is to execute a post-nuptial agreement while married and before filing for divorce. A post-nuptial agreement is much like a prenuptial agreement, except it is executed after you marry instead of before.
You can execute one at any point in your marriage. If your marriage is looking rocky, but you have not yet filed for divorce, you can enter into a post-nuptial agreement, even if you and your spouse are living apart at the time but have not yet decided to divorce.
In a post-nuptial agreement, you and your spouse can work out who will live in the family home, who will keep what property and pay which bills, how parenting time will work out and whether alimony and child support will be paid if you separate or divorce.
These are the same issues that would be addressed in a separation agreement, and they are the same issues that will need to be resolved in a divorce. A post-nuptial agreement is a great alternative for couples in Florida who want some issues settled while they contemplate ending their marriage or as part of the divorce planning process.