When a couple decides that they no longer wish to live together as a married couple, there are usually two options, legal separation or divorce. The law varies according to the state and jurisdiction in which you live. For couples residing in Florida, there are fewer options but different alternatives to protect the rights and ensure responsibility.
Ending a Marriage in Florida
In the state of Florida, divorce is referred to as dissolution of marriage and refers to the permanent and legal cessation of the marriage. A condition for divorce is residency. One or both parties must have been a resident of the state for at least six months. There are many grounds for divorce in Florida including;
- Domestic violence
- Mental Incompetency
- Alcohol or drug use
- Criminal conviction
- Incompatibility of temperament
- Other irreconcilable differences
Legal Separation in Florida
There are many times when a legal separation is desired instead of divorce. Perhaps you are not emotionally prepared for divorce but wish to establish a court-approved separation. There are instances where the religion practiced by a couple is influential in the decision to stay legally married while living financially separate lives. As well, there are certain instances where it is better to stay married in order to maintain insurance or to continue to receive benefits like Social Security income. In most states, legal separation is an acceptable remedy to these circumstances. However, legal separation is not recognized in Florida.
Alternatives to Legal Separation in Florida
If both parties agree that the marriage is not working yet want to remain legally married, it is important that precautions are taken to protect the individual’s rights, for the immediacy and in the future. Since the state of Florida does not offer those with troubled marriages the option of legal separation, other measures need to be taken. These can include, postnuptial agreements and child custody and support agreements.
Post Nuptial Agreement in Florida
In the absence of a legal separation, a postnuptial agreement is the next best thing. It can serve to officially and legally separate ownership of property, assets, and debt. It can also address what will happen to property and assets should one spouse die -during the marriage. The agreement doesn’t need to be filed with the court to be valid. To be valid, a postnuptial agreement must be:
- Written document specifying division of marital assets and debts
- Signed by both spouses and notarized.
- Voluntary – must be freely agreed without coercion or force.
- Based on full disclosure – you cannot hide information about assets or debt from one another.
Before signing a postnuptial agreement, it is recommended that each party has legal representation, review all documents thoroughly. In most cases, a judge will uphold the terms of a postnuptial agreement as it is expected that both parties did their due diligence before signing. You cannot simply claim ignorance to get out of the agreement. There are certain items that are not enforceable, however. These include:
- Encouragement of divorce
- Unfair distribution of debt or assets
- Child custody
- Child support
- Agreements made under duress
- Agreements that are vague and unclear
Child Custody and Support Agreements in Florida
Because child custody and support cannot be addressed in a postnuptial agreement, couples with children must have a separate order or agreement in place. The first step a couple needs to take is designing a parenting plan. In Florida, an approved parenting plan is required for all cases that involve sharing time or custody of minor children.
In brief, a parenting plan:
- Must be agreed upon by both parents and approved by the court.
- Will be established by the court, in the event parents cannot agree.
- Must be in the best interest of the child or children.
- Signed by both parents and witnessed by a notary.
- Must be filed with the clerk of circuit court in the county in which the minor(s) live.
- Be petitioned through court by the parent seeking primary custody and a response to the petition filed by the other parent.
- Should include proposed division of responsibilities – in detail.
- Should demonstrate a capacity by each parent to carry out responsibilities.
- Include the length of time in which the minor child has lived in their current residence.
- Prove that the arrangement is viable according to geographic locations of both parents.
- Demonstrate commitment of both parents to communicate and co-parent.
Child Support in Florida
Child Support will be determined and enforced by the court system in Florida once a petition for custody has been filed or signed. Child support is based on the needs of the child and may or may not take the parent’s income or division of time with the child, into consideration.
While there is no observance of legal separation in the state of Florida, other remedies exist for those couples who desire to remain legally married. It is important to protect your individual rights and that of your children by creating post-nuptial agreements and filing a petition with the local court for custody and support. If you are facing divorce or separation and live in the state of Florida, we can help. Connect with us today for a free consultation.