Many people are under the misconception that there is a formal “legal separation” that can be filed with the courts instead of filing an actual divorce. There is no formal legal separation in Florida, unlike many other states, even if one spouse moves out of the marital residence (marital residence is generally defined as the last place both spouses lived together). There is, however, a Petition for Support Disconnected with Dissolution of Marriage that may be filed which can enable one spouse to get child support and alimony (if applicable) from the spouse that moved out of the marital residence without actually filing for divorce. When there are children involved in a marriage, if one spouse moves out of the marital residence then that spouse is responsible for contributing to the financial support of the minor child(ren) left with the other spouse. Furthermore, even if one spouse moves out of the marital residence, that spouse is still entitled to visitation (now called “time-sharing”) with the children along with frequent communication. Please note that one of the worst things a spouse can do as far as the courts are concerned is withhold visitation with the child(ren) from the other spouse, even if that spouse moves out of the marital residence.
As a Tampa divorce lawyer, one of the questions that I’m frequently asked is what can be done to keep one spouse out of the marital residence. Unfortunately, until ordered by the court or otherwise agreed to, both parties have the right to live in the marital residence and neither party can force the other party to move out, regardless of whose name is on the deed or lease, and regardless of whether a spouse isn’t contributing to marital bills (such as the mortgage/rent payment, utilities, etc). Even if one spouse vacates the marital residence for a period of time, that spouse is still able to return to the residence or even move back in the marital residence. It’s not unusual for two spouses to both live in the marital residence together during the pendency of a divorce. It’s difficult for a married couple to be able to support two households, especially when children are involved. Furthermore, if the marital residence is property that is owned by the couple, the spouse moving out is still required to financially contribute to the mortgage payments in order to maintain the house as an asset. Just because one spouse moves out of the marital residence doesn’t excuse that spouse from marital bills. Because of this, it is often more economical for a married couple to live together during the divorce until it is established what will be done with the marital residence and who will take possession of it or decide whether or not it is to be sold.
Another option that can be used instead of filing for divorce is signing a post-nuptial agreement. A post-nuptial agreement is essentially the same type of agreement as a pre-nuptial agreement except it is entered into after the parties are married. This can specify how assets, debts, alimony and other issues will be handled in the event of a divorce in the future. Please note that post-nuptial agreements can be very technical and not all issues can be specified in these agreements.