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Sometimes a client will consult with an attorney and ask if there is something that can be done through the courts to deal with support or children issues but not seek divorce. They generally call this a “legal separation”. Although that term has no technical legal meaning there is something that can be done. Instead of filing a divorce action a different kind of action can be filed. That action is legally called one for separate maintenance and support. In this type of action a divorce cannot be granted but instead the court can adjudicate only issues of alimony and child support. This kind of action may be filed by either party. It is particularly useful if the parties are separated, unsure about divorcing, and one party needs support, either alimony or child support, and the other party is unwilling to pay. It is also useful if adequate support is being paid but the issue of how much time the children spend with each parent is not agreed to. The court will enter an order which establishes a timesharing schedule and awards child support and, if appropriate, alimony.
One drawback to this type of action is that the court cannot resolve property issues and therefore if there is jointly held property the court is powerless to distribute the property between the parties, as it can in a divorce. Therefore if property issues are sought to be resolved this type of action will not get the job done.
This action is very useful to parties who are unsure as to whether or not the marriage can be saved. Perhaps they separated to explore if they would like to permanently split up. This action, in the short term, will establish support and timesharing arrangements while reconciliation is explored. Sometimes therapy is ongoing during this process. Of course both parties must agree not to seek divorce. Once the action is initiated, the other party may simply decide to counter petition for divorce. If that occurs, a divorce will ultimately be granted even over the other parties’ objection. Further at any time the initiating party may seek to amend their pleading and ask for a divorce.
It is important to note that there is no residency threshold to meet. In a divorce you may not file until you have resided in Florida for at least six months. Accordingly, for new Florida residents sometimes an action for separate maintenance is filed and after the six month residency is met the action is amended to seek divorce.
Sometimes there are religious reasons why one or both parties cannot seek a divorce. If that is the case they can permanently separate and the court will adjudicate the support and timesharing issues while the parties remain legally married. Also there could be other considerations of a purely financial nature. For example, if the parties are legally married for 10 years or more there are certain rights that inure to each spouse under the federal social security laws. If the parties are legally married and one dies, even after a permanent separation, the other spouse is considered the “surviving spouse” for purposes of inheritance and under Florida law and has certain rights.
If you are considering whether or not to file a divorce or an action for separate maintenance and support you should consult with an experienced family law attorney so you can make an informed decision as to how best to proceed.