I would like a legal separation pending my divorce.
Can I legally leave a bad marriage and the marital home without a concern for abandonment?
There is no legal separation in Florida, the state you are writing from and where I’m licensed. However, you and your spouse may enter a post-nuptial agreement which can address generally areas that concern child care, marital property, parental responsibility, and time-sharing.
It is possible to bring a separate maintenance action against your wife, either as a separate action or as a count in a petition or counter-petition for dissolution of marriage. An action for separate maintenance is the functional equivalent of the action for legal separation.
Florida has enacted a no fault dissolution of marriage statute. This means that there are only two grounds for dissolution of marriage in Florida: the marriage is irretrievably broken or one of the spouses is mentally incapacitated.
A marriage is considered irretrievably broken when the parties can no longer live together because their difficulties are so substantial that no reasonable effort will eradicate them. Fault is irrelevant when pleading that a marriage is irretrievably broken.
Abandonment or leaving the marital residence can impact distribution of the marital residence, time-sharing with the children, and child support. If you and your spouse own a marital residence, the court will include it in the equitable distribution of the marital assets, even if you vacate, but the court may consider who is presently in possession as a factor when deciding who should receive the home. If you have children, leaving the residence also has implications for child support and time-sharing with your children.
If you are considering leaving the marital residence, I would strongly encourage you to contact a domestic litigation attorney licensed in your area before taking any action.
Cordell & Cordell has attorneys who are licensed and located in Florida who would be happy to discuss your case with you.
Alison K. Morriss is a Staff Attorney in the Tampa, Florida office of Cordell & Cordell, where she practices domestic relations exclusively. Ms. Morriss is licensed to practice law in the state of Florida. Ms. Morriss received her Bachelor of Arts in Religious Studies, History and Business Administration from Stetson University. She continued her education and received her Juris Doctor from Stetson University College of Law, and her Master of Business Administration from Stetson University School of Business.