Couples in Florida considering living apart often face uncertainty about their legal rights and responsibilities. Unlike divorce, which legally ends a marriage, separation can leave many questions about finances, parenting, and property. Understanding your options is important for protecting yourself and your family during this transition.
Recognition Under Florida Law
Florida law does not formally recognize a status called legal separation. Individuals cannot petition a Florida court to be declared legally separated. Even when living apart, couples remain legally married, affecting matters like tax filing and marital obligations until a divorce. Property acquired and debts incurred during separation may still be considered marital. Spouses living separately can, however, petition for child support or alimony without filing for divorce.1The Florida Senate. Florida Statute 61.09 – Alimony and Child Support Unconnected With Dissolution of Marriage (2022) These actions address immediate concerns but do not grant legal separation status.
Creating a Formal Separation Agreement
Couples living apart can create formal separation or postnuptial agreements to define their rights and responsibilities. These private contracts address asset and debt division and arrangements for minor children.
For enforceability, agreements must be written, signed by both parties, include full financial disclosure, and be entered into voluntarily, free from duress or fraud.2The Florida Senate. Florida Statute 61.079 – Premarital Agreements (2024)
These agreements can specify how marital property (like homes and bank accounts) and debts will be handled. For minor children, they can include a parenting plan for custody, time-sharing, and child support, per state guidelines.
While enforceable as contracts, these agreements do not alter marital status. A well-drafted agreement can simplify a later divorce, with its property and finance terms generally binding unless fraud or duress occurred or the agreement allows changes. Postnuptial agreements, made after marriage, offer similar clarity during separation.
Spousal Support
Spousal support, or alimony, can be sought when a couple lives apart without filing for divorce if one spouse needs support and the other can pay. The court can order financial support during separation.
This support, sometimes called separate maintenance, is determined like alimony in a divorce, considering the requesting spouse’s need and the other’s ability to pay.
Courts evaluate factors like the marital standard of living, marriage duration, age, health, and financial resources. Temporary support addresses immediate needs and does not predetermine future alimony. A requesting spouse is not required to deplete marital assets first.
July 2023 alimony law changes eliminated permanent alimony and revised marriage duration definitions.3The Florida Senate. CS/SB 1416: Dissolution of Marriage (Alimony Reform) – Bill Summary 2023 Durational alimony is based on reasonable need or up to 35% of the net income difference between spouses (whichever is less) and is not for marriages under three years.4Online Sunshine – The Florida Legislature. Florida Statute 61.08 – Alimony Other forms include non-modifiable bridge-the-gap alimony (up to 2 years) for transition needs, and rehabilitative alimony (up to 5 years) for acquiring skills, requiring a specific plan. Courts must provide written findings for alimony awards, and adultery’s economic impact can be a factor.
Child Custody and Support
When separating parents live apart, Florida courts can determine child custody and support. Parents can petition for parental responsibility, a time-sharing schedule, and child support.
The court’s primary consideration is the child’s best interests. Courts evaluate factors like each parent’s ability to foster a positive relationship with the child and honor time-sharing.5Online Sunshine – The Florida Legislature. Florida Statute 61.13 – Support of Children; Parenting and Time-Sharing; Powers of Court Other considerations include:
- How parental responsibilities are divided and the child’s needs are met.
- The child’s stability and continuity.
- The parenting plan’s geographic feasibility.
- The parents’ moral fitness and health.
- The child’s preference, if mature enough.
- Evidence of domestic violence, abuse, neglect, or false information to the court.
- Each parent’s ability to provide a consistent routine.
A court-approved parenting plan is required, outlining decision-making and a time-sharing schedule. Florida law presumes equal time-sharing is in the child’s best interest, though evidence can rebut this.6FindLaw. Florida Statute § 61.13 – Support of Children; Parenting and Time-Sharing The plan also covers healthcare, school, and parent-child communication.
Child support follows Florida’s guidelines, considering parents’ combined net monthly income and number of children to determine the basic support amount.7Justia Law. Florida Statute § 61.30 – Child Support Guidelines; Retroactive Child Support (2024) Health insurance, noncovered medical costs, and childcare expenses are also included. The time-sharing schedule can adjust support if a child spends at least 20% of overnights with each parent. Court-ordered child support is enforceable.
Property Division
Dividing property and debts is a major consideration for separating couples. Florida uses equitable distribution, meaning marital property is divided fairly, though not always equally.8The Florida Senate. Florida Statute 61.075 – Equitable Distribution of Marital Assets and Liabilities (2024)
The process distinguishes marital from non-marital property. Marital assets and liabilities generally include items acquired or debts incurred during marriage, like income, increased value of non-marital assets from marital efforts, spousal gifts, and accrued retirement benefits. Property jointly held by spouses and most debts from the marriage are presumed marital.
Non-marital assets and liabilities remain separate. These include items from before marriage, or received separately by one spouse through inheritance or third-party gifts. Income from non-marital assets kept separate can also remain non-marital. Property excluded by a valid written agreement is non-marital.
The cut-off date for determining marital property is the earliest of: a valid separation agreement date, another date set by such an agreement, or the divorce petition filing date.9FindLaw. Florida Statute § 61.075 – Equitable Distribution of Marital Assets and Liabilities Assets or liabilities after this date are non-marital. Physical separation alone does not establish this date.
Courts set valuation dates. Unequal distribution can occur based on factors like each spouse’s marital contribution, economic circumstances, marriage duration, career interruptions, and intentional waste of marital assets.
Postnuptial agreements can define property arrangements, requiring full financial disclosure and voluntary consent. For example, a pre-owned home is non-marital, but its value might become partly marital if marital funds paid the mortgage or made significant improvements.
Changing or Enforcing Separation Terms
Once a separation agreement or court order is in place, circumstances can change, or a party might not comply. Florida law allows for modifying and enforcing these terms.
Financial support like alimony or child support can be modified given a substantial, material, and unanticipated change in circumstances, such as significant income changes or new supportive relationships.10Online Sunshine – The Florida Legislature. Florida Statute 61.14 – Enforcement and Modification of Support, Maintenance, or Alimony Agreements or Orders Alimony cannot be sought later if not initially awarded. Child support modifications also require this substantial change and must be in the child’s best interests. Modifications can be retroactive to the petition filing date.
Modifying parental responsibility and time-sharing also requires a substantial, material change in circumstances and that the change serves the child’s best interests. Courts prioritize stability, so this is a high standard.
If a party fails to comply, the other can seek court enforcement. For financial obligations, options include contempt motions, income deduction, license suspension, and property liens. Time-sharing compliance is not dependent on support payments, nor is support payment dependent on time-sharing.
Marital settlement agreements in a final divorce judgment generally have a twenty-year enforcement statute of limitations. Courts enforce clear terms as written.
Parties in modification or enforcement proceedings may request attorney’s fees, which courts can award based on one party’s need and the other’s ability to pay.