An Alternative to Divorce – Separation and How to Protect Yourself

While there are multitude of reasons people give as to why they filed for divorce, there are just as many reasons others choose to stay married but live apart. Some possible reasons a couple might choose to stay legally married but live separate lives include for health insurance coverage, Social Security benefits or a trial separation. Certain states call this situation a legal separation and permit courts to approve separation agreements that lay out the responsibilities of each spouse on issues like child custody, child support and alimony. While Florida law does not have the concept of legal separation in domestic matters, it does recognize the need for provisions that impose the same types of support and custody obligations given in divorce cases. There are also several other legal agreements couples can execute to establish structure for this new phase of their relationship and give both parties some security. An overview of the statutory provisions related to support and child custody issues when there is not a divorce petition, as well as the types of other legal agreements that could help a married couple living apart, will appear below.

Florida specifically has a statute that permits a person to petition for alimony or child support even if there is not a pending divorce petition. This statute is applicable when both spouses live in the state but reside in separate households. The law authorizes a court to order child or spousal support if the other spouse has the financial ability to contribute to his/her family but fails to do so. The spouse seeking support would need to file a Petition for Support Unconnected with Dissolution of Marriage. Further, when determining support obligations the court is also charged with establishing a parenting plan that will dictate how much time any minor children will spend with each parent. The procedure to determine if and how much support a spouse may pay and the division of parenting time are the same process used for these issues in a divorce. Additionally, the Department of Revenue Child Support Program will assist parents with obtaining child support orders regardless of whether the couple is married or currently seeking divorce.

While Florida does not judicially approve separation agreements or settle disputes, it can still be worthwhile for the spouses to execute one in order to bring clarity about the division of responsibilities. Essentially, the separation agreement functions as a private contract between spouses that each is obligated to follow. If disagreements arise or one spouse stops performing his/her part of the agreement, the other spouse could sue under contract law and potentially recover monetary damages.

Spouses also have the option of drawing up postnuptial agreements. These agreements are drafted after a couple gets married and could address issues like alimony, child support, property division and parenting time in the event of a future divorce. Executing an agreement like this could help facilitate a quicker divorce and take some of the emotion out of the divorce process.

Sometimes divorce is not the best answer for a marriage in trouble, but if you choose to separate instead of filing for divorce, it is still important to protect financial interests and parental rights. Stok Kon + Braverman, in Fort Lauderdale and Boynton Beach, can provide any guidance you may need to provide a legally recognized structure to altered living arrangements. Contact us today to schedule a confidential consultation.