Technically, Florida is not a “legal separation” state. Many states require that married couple separate for a specific period of time before a final judgment of divorce will be entered. Even in the “separation states,” there are generally exceptions to the separation requirements, such as cases of infidelity or domestic violence.
In Florida, many couples separate as a matter of fact. That is, the parties cease residing together. Sometimes they continue to commingle their finances, file taxes jointly, etc., but they no longer reside together. This period of informal separation may or may not be relevant if the parties ultimately file for divorce in Florida.
In addition, in some cases, when parties separate, they also retain attorneys to draft Postnuptial Agreements or Marital Separation or Marital Settlement Agreements. These Agreements set forth the terms the parties intend to be bound by should they ultimately file for divorce. If the Agreements involve full disclosure and fulfill all other statutory requirements, then they are enforceable contracts, if and when a divorce is filed.
The only exception is that parties generally cannot negotiate timesharing/custody issues. Even if the Agreement contains specific provisions for the custody or timesharing of children, it may not be enforceable. If either party feels an Agreement fails to consider the “best interest of a child or children,” then that party may petition the Court, and the Court will make the final decision. It is true that parents can enter into Agreements during or prior to filing a divorce but again, the terms in those Agreements must meet the best interest of children standard or they can and may be set aside.
If you are contemplating a separation from your spouse, it is important to seek out an experienced family law attorney. This is true for many reasons. First, to protect yourself, you may feel some type of Agreement is appropriate. Only a knowledgeable attorney can draft a legally sound Agreement. Next, when parties separate, they create a new status quo in the relationship. There are circumstances where this can lead to a bad result in a divorce. For example, if one spouse lives separately for a substantial time without receiving spousal support from the other spouse, this may be a waiver of support in a divorce, as it tends to demonstrate the party can live without support. No matter your particular facts, it is a good idea to consult with a family law attorney.