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Divorce vs. Legal Separation

Friday, April 15, 2016

Posted By: Stuart N. House

Confusion abounds in the minds of couples contemplating separation or divorce. The most common question pertains to the legalities of a "legal separation." The confusion is justified because that term does not have any strict legal meaning in the state of Florida.

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3 Types of Marital Separation

Couples sometimes move through two or three separations on their way either to a reconciliation or a final divorce. And while those separations don't apply to the legal system, they can carry important legal consequences. Here are the most common types of separation:

  • Trial Separation: The couple tries living apart to see if this is what each party truly desires. This type of separation is not recognized by courts but is rather a process on the journey from marriage toward divorce. All the assets accumulated during this period are considered to be marital property, and the debts will be considered marital debts.
  • Permanent Separation: Couples permanently live apart from one another. There are very important legal implications involved in this arrangement, and the failure to properly attend to those issues could have potentially profound adverse effects on the rights of the parties, particularly relating to property rights and potential spousal support and child support issues. In nearly every state, the assets and debts after the separation are those of the party receiving or incurring them. In the case of providing for children or the marital home, the debts may be considered joint. This type of separation may not be legal unless in a circumstance where one of the couple files for permanent separation rather than divorce.
  • Legal Separation: Though the term itself is somewhat of a misnomer, occasionally a couple separates, and has the Court determine issues of child support, alimony, child custody/visitation and property division without obtaining an actual divorce. This can be done either by written agreement, or by contested court action. Generally, this arrangement is undertaken instead of a divorce for personal, religious or financial reasons.

2 Types of Divorce

There are two types of divorce: at-fault and no-fault. Florida is a no-fault divorce state; however, in the case of adultery, an at-fault divorce can be granted.

  • No-Fault Divorce: One spouse can sue for divorce without having to accuse the other of any wrongdoing. Claims of incompatibility, irremediable breakdown of the marriage or irreconcilable differences can be entered into the court record without having to blame a spouse. This is the model which exists in Florida.
  • At-Fault Divorce: In states other than Florida, a spouse may be required to establish some measure of fault, like adultery, domestic violence or substance abuse. THIS IS NOT APPLICABLE IN FLORIDA IN ORDER TO OBTAIN A DIVORCE, notwithstanding the fact that the Sunshine State is a "no fault" state, there may be circumstances within a divorce proceeding where the evidence of misconduct of the other spouse becomes relevant to particular issues within the divorce. For example, domestic violence and/or substance abuse would be relevant to determination of parenting issues, and wrongful dissipation of the marital estate (spending marital money on a paramour) would be relevant to determination of equitable distribution, and possibly alimony as well.

Divorce is the permanent end to a marriage. The court oversees how the marriage will be untangled regarding custody, property division and future financial support. One or more of the forms of separation may allow couples to take the time to calm their tempers and see how living apart changes their outlooks.

The time between marriage and divorce is a good period in which to use individual and couples counseling, and to think carefully about what life after marriage will look like. During this time, consulting with a Parkland or Coral Springs divorce attorney can help you better understand your options, as they apply to Florida laws.

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