Sometimes parties decide to separate but are not ready to file for divorce and officially end their marriage. The decision to separate rather than divorce can be based on a number of reasons such as the parties’ desire to attempt to save their marriage, religious beliefs which prohibit divorce, or the parties’ inability to afford to divorce at a particular time. People often ask whether during this time they can file for legal separation in Florida.
The answer is “sort of.” Florida Statute Section 61.09, entitled “Alimony and Child Support Unconnected with Dissolution” provides an opportunity for one spouse to request the Court to order the other spouse to contribute to his or her financial support as well as that of their minor children via alimony and/or child support payments.
Florida Statute Section 61.09 does not, however, allow the Court to separate the parties’ property (e.g., the Court cannot award one party exclusive use and possession of the marital home), or establish a legal separation which would prohibit a person from inheriting from his or her spouse’s estate in the event of death, or absolve either party of any liability which results from the parties’ marriage. Even if a party secures support payments pursuant to Florida Statute Section 61.09, marital debts and liabilities continue to accrue.
One interesting thing to note about Florida Statute Section 61.09, however, is that there is no residency requirement associated with it. In order to obtain a divorce in Florida, at least one party has to reside in Florida for at least six months prior to filing a Petition. As a result, if a neither party meets the residency requirement, it may be beneficial to file solely for financial support and then convert the action into a divorce case after the requisite six months has passed.
When deciding whether to file for support unconnected with dissolution of marriage a spouse should understand that often times the other party will counter-petition for a full divorce. In other words, filing such an action may be a catalyst for a divorce – the very result you may have been trying to avoid.
Another option to consider is what is called a Post Nuptial Agreement. People are more familiar with Pre-nuptial Agreements, but there are also Post Nuptial Agreements which can work as a kind of security, which is a contract on what the desire would be if the parties do in fact seek a divorce. This may be another option among others.
In conclusion, while Florida does not recognize legal separation, it does provide an opportunity for a spouse to ensure his or her continued financial support from the other party or other options which my resolve the issues a couple not ready to divorce may face.© Lowndes, Drosdick, Doster, Kantor & Reed, PA, 2013. All rights reserved.