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The Difference Between Legal Separation and Divorce

legal separation

You married your spouse, intending to be together for life.  But then life happens. Almost half of all marriages in the U.S. end in divorce. For second or third marriages, the rates go up, 60 and 73 percent, respectively.

While some states require a formal separation before filing for divorce, Florida has no statute on legal separation and does not recognize a trial or permanent separation. As a result, there is no way a judge can enforce a separation agreement order.

Still, many people may choose a legal separation before divorce. The reasons may include:

  • You want to divorce, but your religion does not allow it.
  • You want to try living separately to see if it improves the acrimony.
  • You may want to continue paying your financial obligations but live like roommates.
  • Your children are still young, and you do not want to uproot their lives.
  • Your family disapproves of divorce.

A trial separation is voluntary and will not require you to file with the Florida court. During this time, you can agree on the terms of the separation including, how long you plan to be separated, who will pay the bills, including the mortgages and credit cards, child custody, and support.

Taking the time to work on your future may bring both people closer. You may enter into counseling to see if it can save the marriage. At this time, you may remain in the same house or separate housing. Regardless, you are still married because Florida does not recognize legal separation. Other states may require some period of separation as a condition of divorce.

If your separation goes on for an extensive period of time, entering into a property and separation agreement is advised. Spouses may be able to resolve their outstanding issues of property division, child custody, child support, and alimony, if applicable.

Because Florida does not recognize any separation agreements, it will not be possible for the family court judge to enforce an agreement if one party decides to violate it.  

While a separation does not end a marriage, a divorce will. Just as during the separation, a divorcing couple will need to negotiate a new life, including:

  • Dividing property
  • Child support and custody
  • Visitation
  • Alimony
  • Dividing debt

Separation Agreement

The advantage of a couple negotiating a separation agreement is that you are resolving your differences in advance of the divorce process.  Family court judges often encourage couples to settle the outstanding issues of their family life before entering into a divorce proceeding.

The court will recognize a postnuptial agreement that can be entered into at any time during a marriage. It is similar to legal separation and will be valid if both sides had separate legal counsel before signing it. If one side violates the conditions of the postnuptial, you can file an action in court to enforce its terms.
There is a downside during a separation if you opt to negotiate without consulting a family law attorney.
Sometimes, one of the spouses is the passive one in the relationship. In the process of separating or filing for divorce, they may want to be conciliatory toward the other.  The implications of that can be far-reaching.
Without having an advocate by your side who has helped countless others navigate their divorce, you may fall prey to unforeseen problems. Maybe you didn’t consider how much you would have to pay to educate your children, have them attend summer camp or the fact that you need a new car.

If the other side has mounting credit card bills, an experienced family law professional can identify that debt as something you should not take on.

Remember that divorce is an adversarial process, no matter how nice you want to be. Unless you have been through this process before, there may be pitfalls you are not even considering.

Crystal Collins Spencer understands that separation and divorce are complex and emotional. Her advocacy can resolve some of the stress you are feeling at this time by advocating for your rights.

With over 30 years of experience, Crystal Collins Spencer will help you navigate the complicated waters of divorce to make sure there are no surprises at the end of the day. Contact Spencer Law at (820) 912-8080 to schedule your consultation. 

316 S. Baylen Street, Suite 520
Pensacola, FL 32502
Telephone: 850.912.8080 Fax: 850.912.8028

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