Do You Have to Be Separated Before Divorce in Florida? – When Split Happens Episode 7

This post is part of a series summarizing each episode of When Split Happens, Sasso Guerrero & Henderlite’s podcast. Access all episode topics here.

In this episode of When Split Happens, Jacksonville family law attorney Jay Henderlite of Sasso Guerrero & Henderlite answers a question that surprises many couples: Do you have to be legally separated before filing for divorce in Florida? The short answer is no—but Florida’s divorce laws have important rules every spouse should understand before filing.

Jay also discusses how informal separation can impact parenting arrangements, financial rights, and future court decisions—especially for families in Jacksonville and Northeast Florida.

Related: Announcing When Split Happens, New Family Law Podcast Hosted by Jay Henderlite

Do You Need to Be Legally Separated to File for Divorce in Florida?

No. Florida does not require couples to be legally separated or living apart before filing for divorce. The state doesn’t recognize “legal separation” as a formal status — under Florida law you are either married or divorced. To file, you only need to meet two requirements: residency and an irretrievable breakdown of the marriage.

What Florida actually requires

Florida is a no-fault divorce state. That means you do not need to prove adultery, cruelty, abandonment, or any specific wrongdoing. The two legal pillars are:

• Residency: Either you or your spouse must have lived in Florida for at least six months before filing. Acceptable proof can include a Florida driver’s license or state ID, utility bills, or testimony from a witness who can verify your presence in the state.
• Irretrievable breakdown: You must state under oath that the marriage can’t be saved. No additional proof of fault is required.

Common scenarios and what they mean for your case

Because separation is not a legal status in Florida, how couples handle living apart can still affect certain issues, even if it isn’t required to start a divorce.

Moving to Florida but not yet six months in state

If neither spouse meets the six-month residency requirement after moving here, you generally must wait until the six-month period is satisfied before filing for divorce in Florida.

Living apart while still married

Couples often separate informally. Florida recognizes these “trial separations” in practice, but they have no automatic legal effect. Income earned, debt incurred, and assets acquired while you remain married can still be treated as marital for division at divorce.

Parenting and time-sharing

How you handle parenting during a separation can matter. If one parent has been the child’s primary caregiver for a long period, a court may consider that history when making time-sharing decisions later.

Financial and custody arrangements without divorce

If immediate divorce is impractical due to religious, insurance, or financial reasons, Florida offers a lesser-used option: a petition for support unconnected with dissolution of marriage. That petition can request temporary custody, support, or property terms while you remain married.

Private separation agreements

You can draft a private separation agreement addressing property division, alimony, or child support. However, such contracts are not automatically enforceable by the court unless they are incorporated into a divorce or support case. That’s why careful drafting with an attorney is essential.

Practical next steps if you’re considering divorce in Florida

• Confirm residency: identify documents or witnesses that prove six months of Florida residency.
• Decide whether you need temporary orders for custody, support, or use of the home — consider a petition for support if you’re not ready to file for divorce.
• Document caregiving and financial arrangements while living apart; these facts can influence later rulings.
• Consider a written separation agreement for clarity, but consult an attorney to ensure enforceability.
• Talk with a family law attorney to review options and prepare filings tailored to your situation.

FAQ

Do we have to live apart before filing for divorce?

No. Florida does not require living apart or legal separation before filing. You may live together up to the point you file, and the court still can grant a no-fault divorce if residency and irretrievable breakdown are met.

What proves the six-month residency requirement?

Evidence can include a Florida driver’s license or ID, utility bills, lease or mortgage records, or testimony from someone who can confirm you lived in Florida continuously for six months.

What does “irretrievably broken” mean?

It simply means the marriage cannot be saved. You do not need to demonstrate fault like adultery or cruelty — a sworn statement from one spouse that the marriage is irretrievably broken is sufficient.

What if my spouse objects to the divorce?

An objection from one spouse does not prevent the court from granting a no-fault divorce. A judge may suggest counseling or briefly delay proceedings, but disagreement alone is not a legal bar to divorce.

Can we create a separation agreement without filing for divorce?

Yes, you can draft a private agreement addressing division of assets, alimony, or child support. But those agreements are not automatically enforceable unless they are incorporated into a court case (divorce or support). Have an attorney prepare or review the document to protect your interests.

Can I get temporary custody or support before filing for divorce?

Yes. Florida allows a petition for support unrelated to dissolution to request temporary custody, child support, alimony, or use of marital property while you remain married.

Does living apart change what’s considered marital property?

Not automatically. Property and income acquired while legally married—whether you live together or apart—can still be considered marital and subject to equitable distribution at divorce. The specifics depend on timing and how assets were handled.

Does Florida recognize legal separation as a formal status?

No. Florida does not have a formal legal separation status or certificate. The state only recognizes marriage and divorce.

Final thoughts

Florida’s no-fault system simplifies the grounds for divorce, but practical considerations about residency, temporary orders, and how you handle separation in daily life can change the course of a case. If you live in Jacksonville or the surrounding area and are exploring divorce or need temporary arrangements while you remain married, consult a board-certified family law attorney to understand your options and protect your rights.