08 Jun What is a Separate Maintenance Action?
Sometimes a marriage is not quite working out, but you are not (yet) ready for an actual divorce. Additionally, there are instances where a couple may be ready to separate but are not legally entitled to divorce at that moment. In both these cases, it would be a good idea to file for separate maintenance action. An order of separate maintenance and support allows spouses to divide property, assets, and custody as they would in a normal divorce while still being legally married.
What Benefits Does a Separate Maintenance Action Provide?
However, not all benefits of being divorced are still allowed to couples who have filed successfully for separate maintenance action. First of all, both spouses are not legally allowed to marry another person. You are still legally married, so marrying another person can get you charged with bigamy. Additionally, any inheritance laws associated with the death of a couple involved in a separate maintenance action will apply as if they are still legally married since they are. Finally, filing for this action does not make you and your partner legally “separated” under most state laws. However, some states do recognize a couple as being legally separated in these instances. Primarily a separate maintenance action is simply a way for couples to divide property, assets, and custody while still remaining legally married.
Why Would a Couple Seek a Separate Maintenance Action?
There are many reasons a couple may seek a separate maintenance action. One of the most common has to do with religious beliefs. Those who are very devoted to their religion, may not be able to get a legal divorce due to religious beliefs. A separate maintenance action provides an excellent alternative for couples in this situation, as they get nearly all the benefits of a couple that goes through a regular divorce, without going against their strongly held religious convictions.
Some couples may be ready to leave each other on a romantic level but still rely on the social security, military, tax, or other benefits they receive from one another. Once again, these couples are likely to see a separate maintenance action as an extremely attractive alternative to divorce. By allowing couples to divide assets, custody, and other aspects of their marriage without them losing benefits, the state allows couples to move on with their lives without being put into potentially dire financial situations.
For couples who are looking to divorce, but are not quite ready, the possibility of a separate maintenance action can help them resolve important issues during the unofficial separation period. Determining the separation of assets, the custody of children, and other matters can be very difficult during the actual divorce process. Putting together separation agreements before entering the divorce process can save both spouses, as well as any involved children, lots of heartache, frustration, money, and time.
Finally, any couple who is in a waiting period for a legal divorce may be able to benefit from a separate maintenance action. When waiting out the time period a state may require the couple to wait before an official divorce, having the ability to preemptively divide assets can save the couple a ton of time, money, and emotional frustration.
If it is not desired, the couple involved in a separate maintenance action never has to legally divorce. If both partners feel secure in this situation, it could potentially last until one of them dies. However, if a partner dies, seeks divorce, or becomes romantically involved with someone else, the separate maintenance action is terminated. A spouse can also file for the separate maintenance action to be either modified or terminated if any significant changes in circumstances occur. You can determine if a change in circumstances is deemed significant by consulting your family law attorney.
How Does a Couple File for a Separate Maintenance Action?
Although it can be difficult to enter the separate maintenance action status, it can ultimately provide a useful situation for spouses in a hopeless marriage. When you are certain that a separate maintenance action is right for you, you should sit down with your attorney so that he can educate you about what steps you will need to take in order to have the separate maintenance action approved.
Before anything, the spouse that is seeking the separate maintenance action must apply for an order of separate maintenance and support. Once this document is received and filled out, the spouse should then file the summons and complaint with the clerk of their local Family Court. Once the clerk reviews, approves and countersigns the summons, it is served to the other spouse.
Unlike other actions that must be served, you will not be able to serve your spouse with the request for separate maintenance and support. Having a trusted friend or professional service serve the document is usually your best bet. In a situation where you have reason to fear the reaction of your spouse, especially if they have been abusive in the past, you may seek help from law enforcement in order to serve them the document.
Once served, your spouse will have up to 30 days to answer the complaint. If they wish to raise any defense toward the legal separation request, they must do so within this time period of 30 days. After all of this has occurred; the judge will hear the case in order to decide whether to issue the separate maintenance action or review the agreements between the parties.
Factors Considered by the Florida Family Courts
Many factors help determine whether the request for separate maintenance action is fulfilled, but a few that hold particular importance include:
- Tax consequences of the separate maintenance action
- Whether or not either spouse has prior obligations from any previous marriage(s).
- What the couple’s standard of living was during the marriage
- Matters concerning the custody of the children.
- Determining if any marital misconduct had occurred during the marriage.
- The emotional and physical condition of both spouses.
- The financial situation of each spouse: including current income and employment.
- What each spouse’s expected/current financial needs will be from their partner.
- A review of the property, assets, custody and other objects will need to be divided.
These are just a few things that the judge may consider when reviewing a request for separate maintenance and support. If he finds things that concern him you may be required to back up your need for a separate maintenance action with testimony and evidence. With the help of a talented family law attorney, you should have little trouble preparing yourself for any additional hearings that may occur. Ideally, though, both you and your partner should be on similar terms before applying for a separate maintenance action in the first place. Separate maintenance actions tend to be reached through mutual interest, so instances where one spouse is unwilling to become much more difficult to navigate.
Separate maintenance actions allow for a convenient way for couples who are unable to divorce to receive many of the legal benefits that would come from one. If you feel that you and your spouse could benefit from a separate maintenance action, do not wait another minute and get into contact with your local Family Law attorney today. Timing can be important when it comes to filing for separate maintenance actions, so always ask your lawyer to go over each aspect of the process before entering the official filing step.
Separate Maintenance Related Statutes:
A separate maintenance action is a Florida court proceeding in which two people may litigate in order to determine their support obligations without altering their marital status. The term “separate maintenance” refers to alimony and child support payments that one spouse will provide to the other spouse for living expenses while the two are residing apart – without the intention of filing a petition for the dissolution of their marriage (Divorce) (see Florida Statute §§61.09, 61.10).
According to Florida Statute § 61.09:
If a person having the ability to contribute to the maintenance of his or her spouse and support of his or her minor child fails to do so, the spouse who is not receiving support may apply to the court for alimony and for support for the child without seeking dissolution of marriage, and the court shall enter an order as it deems just and proper.
According to Florida Statute § 61.10:
Except when relief is afforded by some other pending civil action or proceeding, a spouse residing in this state apart from his or her spouse and minor child, whether or not such separation is through his or her fault, may obtain an adjudication of obligation to maintain the spouse and minor child, if any. The court shall adjudicate his or her financial obligations to the spouse and child and shall establish the parenting plan for the parties. Such an action does not preclude either party from maintaining any other proceeding under this chapter for other or additional relief at any time.
Florida Statute § 61.09 is used by the spouse who believes themselves to be in need of support, whereas Florida Statute §61.10 supplies a cause of action for the (potentially) supporting spouse.
If you have questions about separate maintenance or child support obligations, call us at 1.786.309.8588.