Florida is one of only six states that don’t recognize legal separation as an alternative to divorce. This means that unlike in many other states, there is no “legally separated” status in Florida. So, if you and your spouse separate in Florida, you are still legally married until you get a divorce decree from the court.
This can lead to confusion around rights regarding the marital home when spouses separate in Florida. If there’s no legal separation here, does that mean that a spouse who moved out still has the legal right to return and enter the home? Can you change the locks to keep your spouse out? What options exist in Florida for spouses who want to live separately while remaining married?
Divorce and Legal Separation
To understand the dilemma around the marital home it helps to recognize how divorce and legal separation work in Florida.
In a typical legal separation in other states, nearly everything is handled as it would be in a divorce proceeding. Issues like child custody, child support, division of property, and spousal support are all determined by the court and outlined in the order granting the separation.
The key difference is that the marriage itself remains intact. The spouses live apart and go about their lives separately in every way except for still technically being married in the eyes of the law.
But since Florida doesn’t recognize legal separation, spouses here only have two options if they want to live apart:
- Reach an agreement with your spouse on your own through a postnuptial agreement
- File for divorce
If you simply split up without any formal agreement with your spouse or court intervention, you remain married with all the rights and responsibilities that come with it.
Does a Separated Spouse Have a Right to the Marital Home?
If you and your spouse own your home jointly or one spouse owns it individually, the marital home is considered marital property.
In states with legal separation, the use and possession of the home is typically determined as part of the separation order, just like with divorce. Often, the spouse who will have primary custody of any children is granted the right to stay in the home.
But without legal separation in Florida, there is no court order addressing the home specifically. Generally speaking, both spouses have an equal right to live there and enter the property even if they are living separately while still married.
So, if you change the locks to keep your spouse out of the home, they could take legal action to regain entry and possession. You typically can’t restrict your spouse’s access to marital property without some type of formal agreement or court approval.
Protecting Your Interest in the Home During Separation
Just because your spouse may still have the legal right to enter the marital home doesn’t mean you have no options to protect yourself and your children. Here are a few steps you can take:
- Consult an experienced family law attorney. They can advise you on your rights and options. They may suggest filing for the exclusive use of the home or temporary support.
- Ask your spouse to sign a postnuptial agreement outlining each spouse’s rights regarding the home. This converts your informal separation into an enforceable contract. Record it with the county for additional protection.
- File a Petition for Support Unconnected With Dissolution. This allows the court to enter orders regarding child custody, support, and use of the home without ending the marriage.
- If needed, file a restraining order against your spouse if you have concerns over domestic violence or harassment. This could prohibit them from approaching or entering the home.
- Start the divorce process by filing a petition. Once submitted, you can request temporary relief regarding the home as part of the case.
- Pay the mortgage, taxes, insurance, and other bills for the home to show you are maintaining the property. Keep records demonstrating your investment and caring for the home.
Requiring a Spouse to Leave the Marital Residence
If your separated spouse already moved out but wants to return, can you require them to leave instead of letting them re-enter the home?
Much will depend on whether you have filed for divorce yet. Once a divorce petition is submitted, you can immediately ask the court to grant you exclusive possession of the home through a temporary order. The judge will consider factors like:
- Which spouse needs the home more for themselves and any children
- Which spouse can find other housing most easily?
- Which spouse has historically been primarily responsible for the home?
- Whether one spouse committed violence or abuse against the other
If domestic violence was involved, the court is very likely to order that abusive spouse to leave the marital residence. But if no divorce case has been filed yet, it becomes more difficult to get a court order requiring your spouse to leave.
Some alternatives in this case include:
- Filing a restraining order/injunction against your spouse if their presence represents a threat
- Filing for temporary support requesting exclusive possession yourself
- Negotiating with your spouse to sign an agreement that they vacate
- Offering incentives like money to convince your spouse to leave willingly
- Telling your spouse you intend to file for divorce immediately if they refuse to move out
Impact of Separation on the Marital Home
Allowing your separated spouse to return to and live in the marital home could potentially affect property division if you do later file for divorce. Some risks include:
- The court viewing it as you abandoning the home so your spouse gets possession
- Your spouse damaging the home, requiring repairs that lower its value
- Your spouse not contributing to the mortgage, taxes, and upkeep
- Increased conflict between spouses if living under the same roof
It’s almost always recommended that separated spouses live separately throughout the divorce process. This includes staying out of the marital home.
Many spouses in Florida who want a legal separation don’t realize that separation here doesn’t easily allow excluding your spouse from the home like in other states. If keeping your spouse out of the house during your separation is a priority, speaking with a knowledgeable family law attorney in Florida is highly advised. They can help craft a customized solution based on your situation.
Using Temporary Relief to Restrict Home Access
Once you’ve started the divorce process by filing a petition, temporary relief becomes available to help separated spouses regulate access and use of the marital residence while the case proceeds.
Temporary relief is intended to maintain the status quo between the parties until the divorce is finalized. Different types of temporary orders related to the home can include:
- Exclusive use – Grants one spouse sole possession of the home
- Occupancy and use – Spells out access rules like visitation schedules
- Stay away – Requires the other spouse to remain away from the home entirely
- Injunction – Bars a spouse if there’s fear of violence or harassment
The court decides temporary relief based on factors like:
- Establishing housing for minor children
- Balancing hardships if one spouse is excluded
- Considering the history of domestic violence
- Determining which spouse needs exclusive use more
Temporary relief serves as an important tool to protect your interests in the marital home during a Florida separation leading to divorce.
Returning to an Abandoned Marital Residence
Sometimes, after initially moving out, an absent spouse may suddenly want to return and resume living in the marital dwelling. But if you have already established occupancy on your own, you may want to bar their reentry.
Much depends on whether you are already legally separated with a court order in place or not. Without a formal separation judgment, it is difficult to prohibit a spouse’s access. But once divorce proceedings have commenced, you have options like:
- Motion for exclusive use – Keep the other spouse out of the marital home
- Protection order – If you experienced violence from your spouse
- Child arrangements – Cite the established custody schedule if kids live with you
You will need evidence justifying why your spouse should be excluded. Reasons could include:
- You maintained the home alone by paying the mortgage and bills
- Your spouse would threaten or harm you or the children
- Letting them return would disrupt child custody arrangements
- Their presence would damage the property or assets
While rarely automatic, demonstrating to the court valid grounds for barring reentry can work in your favor. Though if no filing for divorce has occurred yet, limiting a spouse’s rights to the home gets more complicated without the court’s powers.
Can I File for Divorce After Legal Separation in Florida?
Yes, you can file for divorce in Florida after a legal separation. Legal separation does not prevent you from filing for divorce later if you choose to end the marriage.
- You will have to file a new case for divorce, even if you have already filed for legal separation. The court will not automatically convert the separation to divorce.
- The divorce process will proceed similar to if you had not legally separated. You will go through the same steps for custody, support, and property division.
- Any agreements made during legal separation can be incorporated into the divorce decree but are not binding. The court will still review agreements.
- The amount of time you were legally separated will count toward the separation required to file for divorce in Florida. You do not have to live separately again before filing.
- Grounds for divorce will be determined based on circumstances when you file for divorce, not when you are legally separated.
While being legally separated simplifies some aspects of the divorce process, you still need to file for and finalize a divorce to end your marriage in Florida legally. Talk to a divorce attorney to understand how to proceed.
In summary, when spouses separate in Florida, the marital home often becomes a complex issue since legal separations aren’t an option here. Careful planning is required to establish exclusive possession and access if one spouse moves out. Consulting a knowledgeable lawyer can provide guidance on navigating separation in Florida in relation to rights to marital residence.