Does Florida Allow for Separation?

This is a question on which even experienced family lawyers disagree.  It is really a question of semantics.  My answer is a qualified “yes.”

In many states, legal separation is required before you can file for divorce.  That means that a judge has to declare a couple “legally separated” for a certain amount of time before divorce can be filed or granted.  Florida doesn’t have that requirement.  In Florida, the only requirement before a marriage can be dissolved is that one of the spouses live in Florida for six months before filing divorce.  So, in Florida, legal separation isn’t a necessity before divorce.

But we do have something very similar. An action for “support unconnected with dissolution” is a way to get alimony and/or child support yet still remain married.  But a judge does not have the authority to say, “I declare you legally separated.”

So what’s the point? Why not just file for divorce rather than file for alimony or child support and not get divorced?  Well, there are a few good reasons:

  1. Maybe the spouse doesn’t want the divorce.  For example, maybe the spouse wants to keep the other spouse’s health insurance or maybe the couple wants to file joint taxes.
  2. Maybe the spouses don’t live together, one spouse needs the support, but the spouses have just moved to Florida and don’t yet meet the six-month residency requirement to file divorce.  One spouse could file for separation, where there is no six-month residency requirement, and get alimony and child support while waiting for the six months divorce residency time to pass.
  3. Maybe one spouse just wants some time apart to decide whether a divorce is necessary or possibly get some counseling.  The spouse may file for separation to decide whether divorce is necessary.

Option # 3 sounds like the most likely scenario, but it is rare.  As a practical matter, rather than pay alimony to a spouse they’re still married to, most people, if sued for separation, would just counter-sue for divorce.

So does Florida allow for separation?  I’d say yes, but not in the way most people think.

If you’d like to discuss filing a separation action in Florida, call the Anton Legal Group at 813-443-5249.