Separation Agreement Defined
A separation agreement is a written, signed contract which puts the financial and child-related (if any) agreements of the parties into writing. In most cases the agreement is a lengthy and detailed document which sets forth the agreements of the parties and usually addresses the division of assets and debts, spousal support, child support and child custody.
Even though Florida has no legal separation, a separation agreement is similar to a divorce decree in that it stipulates the rights and obligations of the parties . A divergence from the divorce decree is that upon attainment of a divorce, the final order must be drafted in accordance with the Florida Family Law Rules of Procedure and the requirements of Florida Statutes 61.075, 61.081, 61.30 and 61.13.
The purpose of a written separation agreement is to reduce the likelihood of further disputes through the inclusion of all agreements in writing. If either party fails to comply with the contents of the agreement, the other party may ask the court to enforce the separation agreement against the failing party.
Legal Requirements for a Separation Agreement in Florida
A separation agreement is the document that contains the terms and conditions a couple reaches when they agree to separate. A separation does not end a marriage, but rather a trial period before proceeding with a divorce. Separation agreements can contain the resolution for both spousal support and child support obligations, as well as dividing assets and debts. Parties can also decide on parenting responsibilities for children in the agreement. Both parties must sign the separation agreement before a notary public for it to be valid. The validity of a separation agreement depends on whether it is currently in effect. An agreement in full force and effect can be enforced in court. If a party violates the agreement, the spouse may seek to enforce the agreement in a Florida state court. It is important to have an attorney draft the separation agreement to ensure that the language is enforceable in court.
In Florida, there is no law requiring a separation agreement. For example, in California, the law requires a legal separation, which results in a formal judgment of separation to end the remaining marital rights. In Florida, a separation agreement has the same effect as a divorce.
If a separation agreement is entered when the parties have children, the divorce attorney should address the issue of whether an attorney ad litem or a guardian ad litem should be appointed for the minor child. Once a guardian ad litem is appointed, he or she can become a party to the action. When appointing a guardian ad litem, the Florida Bar rules require that the attorney ad litem "shall represent to the extent possible the wishes of [the] minor child" and "advocate for the best interests of the minor children."
Essential Parts of a Separation Agreement
The majority of separation agreements created in Florida address the following components:
Property Division
One of the primary purposes of a separation agreement is to divide marital property between spouses. Most agreements include accommodations for dividing assets such as real estate, bank accounts, savings accounts, pensions, capital investments, and businesses. Agreements also detail the division of debts between spouses, specifying responsibility for credit card bills, loans, and other outstanding debts.
Child Custody Arrangements
If separating partners have children, a separation agreement details all arrangements for custody, visitation, and support. For instance, the agreement may stipulate whether one or both parents will have primary custody of the children, how often the children will stay with each parent, and the respective involvement of each parent in the decision-making process on parenting issues such as education and medical care.
Financial Support
Another component of separation agreements is spousal financial support. In Florida, the term alimony is used to refer to financial support provided by one spouse to the other after or during the marriage. At times, the imposition of financial support on one spouse is appropriate. In almost 50 percent of the cases in Florida, there is a request for some type of alimony award. The specifics of financial support or alimony are most commonly addressed in a court order, but a separation agreement may require spousal support payments as well.
The Preparation of a Separation Agreement
Typically, the process of preparing a separation agreement in Florida can start with select considerations. For one thing, the parties should discuss whether a separation agreement is the most appropriate method of resolving their issues. One aspect of that discussion should include whether in fact an absolute divorce is desired or workable at that point in time. This might include the question of whether parties want to preserve the marriage for a period of time after the separation agreement is signed. Even if a couple desires an absolute divorce, it can often make sense to enter into separation agreement shortly before filing a petition for dissolution of marriage. For some couples, figuring out how to work together to complete the terms of a separation agreement can help ease the transition from being spouses to being nothing more than parenting partners.
Once the parties determine that a separation agreement makes sense for their circumstances, the next logical step is to determine what exactly should be addressed within the terms of the separation agreement and how such terms should be set forth.
Florida family law courts typically look favorably upon separation agreements. The advantages of separation agreements are often apparent, but there can be hurdles to getting a separation agreement approved. For this reason, it can be helpful to have an experienced attorney draft or review the separation agreement. While it is not strictly necessary to have an attorney draft a separation agreement, for example, families who have complex issues often benefit from counsel during the preparation process.
Many couples draft separation agreements on their own. That kind of approach generally makes sense only when the parties have very few assets and debts and no substantial income or child support. Even still, the parties may want to consider having an experienced family law attorney review the separation agreement and answer any questions they might have about the separation agreement. In many cases, the parties can skip the cost of having an attorney draft the separation agreement by instead having a consultation with an attorney to discuss the issues settled in the separation agreement without purchasing a complete retainer.
Pros and Cons of a Separation Agreement
The pros and cons of entering into a separation agreement rather than filing for divorce
In Florida, there isn’t really a stage between living together and living apart. There is no such thing as legal separation here, so we have to make do without a bridge. Instead, there’s separation by agreement or by de facto conditions. Some reasons for separating with an agreement and some issues that may arise are as follows:
More of a "so you think you want to be divorced" tool than a strategic one, a separation agreement is something that should only be sought after careful consideration and discussion with counsel about your underlying goals . Many people only realize this after reaching a point in the dissolution process where it’s probably too late to change their minds. Sitting down and discussing the strategic reasons as well as the risks of entering into a separation agreement are invaluable and one of the many reasons you should consider engaging the services of a reputable family law attorney.
Enforcement of a Separation Agreement
Separation agreements are not automatically enforceable by the spouse, also known as the "non-breaching party," in Florida. That said, they are treated similarly to, or are enforceable in the same manner as, contracts. Florida law requires that before a court can enforce an agreement, the provisions within the agreement must be divided into three separate components: the parenting agreement, the child support obligation and the equitable distribution. The agreement must dictate who will pay for what, and which items are a requirement versus a discretionary expense for the child. An example of an agreement provision would be if the parties were to agree that the mother would pay for the child’s doctor’s visits but that the father would be responsible for the child’s dental coverage. Further, the agreement should designate what happens should one party be unable to pay their portion of the costs; it is important for parties to think about these issues at the time the agreement is put together. If it is not specifically addressed within the agreement and the provision simply states that the parties have agreed to share the cost for a particular expense, then absent any formal support modification proceeding, each party is generally equally responsible for the expenses.
The separation agreement may also contain provisions for what is required in the event a breach has occurred. For example, a potential provision could state that the mother must pay the father a certain percentage of a tuition bill within a specified number of days from the receipt of the bill. Further, the agreement could provide that an inability to pay the bill shall not be considered a breach because the parties mutually agree such provisions may be subject to modification upon the affiliation of the child with the scholarship program through his or her school. Absent any specific agreement, the parties would be required to go through the same litigation process as if that particular provision were not contained in the agreement. Generally, should a party be in breach of the agreement and should the non-breaching party elect to file a motion to compel compliance to the agreement, the court shall enforce those specific provisions unless the opposing party complies (in a timely manner) with the demand or otherwise shows good cause for the failure to comply. Florida statute ยง61.30 provides that each party in a paternity or divorce matter has a right to receive a copy of the other party’s tax returns going back three (3) years in order to verify income. The Florida Department of Revenue can also be petitioned for the child support information from the Florida Agency for Workforce Innovation. This information will also assist in verifying the content of the separation agreement.
Modification of a Separation Agreement
Nothing in a separation agreement prevents a party from seeking a modification of child support or child custody or parenting plans or visitation or, in some legal matters, even spousal support. Generally speaking, those are all part of the Florida law that allows for a modification of those terms in a divorce or paternity case within the court system. A separation agreement generally gets incorporated into an order and becomes an enforceable part of the divorce or paternity case that sanctioned it. However, as an aspect of it that is meant to be part of the legal remedy, the family law courts can modify such an agreement. Usually, the requirement is that the circumstances of the parties have changed. Generally speaking, a party can show that something has changed, usually related to income or needs of the child, the court can modify it to reflect the change in the situation. It is not a modification of a divorce decree that you are seeking . Rather, it is a matter of re-opening the order that incorporated the separation agreement from the divorce or paternity case, and then asking the court to address the ongoing matter. That means that the factors are usually that something has changed regarding the child and/or the parties so that there is a need to reflect the change in the court order; and that the best interests of the child will be met by the modification. The burden of proof in the circumstances to show the need for the modification is on the party seeking it. Further, it is upon the party seeking the modification to show that the proposed change will be in the best interests of the child. This is handled through the discovery process, whether through written questions and answers or other potential means. From there, the family law court drives the issues toward an eventual trial and hearing on the motion to modify. That hearing is essentially where the court will review the evidence and the arguments or position of each party to the case, and will make a decision as to whether to modify the order, as well as the scope of that modification.