My wife had been telling me she wants a divorce for some time and I cannot talk her out of it. She has now set her move out date. Because all of our assets, etc are combined, she is now having second thoughts about the best way to do this. We are a two income family and neither can afford to go it alone at this time. She is now asking me for a legal separation and has said that she will join me in refinancing our house, which she says I can stay in, so it lowers the rate and makes it more affordable. We are in agreement on how to split custody of our child and the separation is amicable. I have been told we cannot file for separation in FL, only divorce. Is that correct? What are the reasons to chose one path over the other. We are not planning reconciliation.
Family Law Attorney
There are a couple of minor reasons for a couple to file for separation instead of divorce, such as keeping one spouse on another's health insurance or to keep paying taxes at the married rate or because the spouses to meet the residency requirement to file for divorce in Florida, but those don't appear applicable to your case. The main reason to file for separation is a psychological one: it allows a spouse to receive alimony and/or child support while the couple works on the marriage, perhaps through counseling.
But separation in Florida isn't as extensive as it is in some other states. It only allows a judge to order alimony or child support. A judge in Florida can't declare the couple legally separated as is allowed (and sometimes required before divorce) in some other states.
Filing separation is uncommon in Florida because, when one spouse files for separation, the other just thinks "I'm not paying alimony," and countersues for divorce. A divorce case always trumps a separation case.
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Criminal Defense Attorney
The advice which you previously received is correct. While many couples become "legally" separated and some in fact remain that in that status for an incredibly long time, Florida does not recognize, therefore nor does it provide statutes, procedural rules, and/or other administrative guidelines for the many analagous issues with which "legally separated couples", particularly those who share common biological children, would ultimately be forced to contend by necessity. I always encourage couples, particularly those with children to attempt reconciliation first, and merely a perfunctory attempt, but a bona fide effort that is not halted the first time the a given couple has an argument during a session. You indicate that you "are not planning reconciliation", but not that you have given up on the possibility entirely so I would as always recommend you try family counseling. If, in the end, it does not work out and you are convinced that divorce is inevitable, take the bull by the horns, file first which will place you as the petitioner which in my view has some advantages and if you want to know why you might choose one path over another, consider whether or not you would like to have your credit destroyed by the next guy she meets; allows to move in with her; has big plans but no job; and for whom she feels sorry so ultimately uses credit cards for which you both, as a married couple have responsibility to buy him nice tailored suits, Italian shoes, etc., which he never wears to a job interview, but does allow him to pick up his next soulmate as a better dressed man. LOL.
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As my colleagues mentioned, there is no legal separation in Florida. But it is common to come to terms on a separation agreement or alimony/child support prior to a divorce being filed on.
You should consult an attorney for advice regarding your individual situation since every case is different and not all information is relayed in an online question. The Law Office of Ophelia Bernal-Mora, P.A. is a family & criminal law firm located in Orlando, Florida, we invite you to contact us and welcome your calls at 407-377-6828. Contacting us does not create an attorney-client relationship. Please do not send any confidential information to us until such time as an attorney-client relationship has been established.