Last updated 2026-07-09
TL;DR
Florida does not recognize legal separation. Spouses use a marital settlement agreement (MSA) or postnuptial agreement to divide property, set support, and arrange parenting while still married. These are enforceable contracts, and a court can fold one into a divorce decree the moment you file. Filing fees run $408 with children, $301 without.
Does Florida have legal separation?
No. Florida is one of a handful of states with no legal separation status at all. You are either married or divorced. There is no court order that makes you "legally separated" the way Maryland, Virginia, and most other states allow.[1]
That gap has real teeth. If you and your spouse stop living together but neither of you files for divorce, you stay fully married in the eyes of the law. You can still be on the hook for debts your spouse runs up. Health insurance, tax filing status, and inheritance rights all stay put. Nothing shifts legally until a judge signs a final judgment of dissolution.
So what does Florida give you instead? A couple of contract-based tools that do most of what legal separation is supposed to do. The marital settlement agreement (MSA) is the common one. You and your spouse sign a written contract covering property division, debt, alimony, parenting time, and child support. It binds you both as a contract the day you sign it, and a court folds it into your divorce decree later.[2]
A postnuptial agreement does similar work and can be signed any time during the marriage, not only when divorce is on the table. Some couples sign one and stay married for years. Others use it as a bridge while they work out whether divorce is the right call.
Here is the plain version: if someone in Florida tells you to "get a legal separation," they almost certainly mean one of these agreements.
What is a marital settlement agreement and what does it cover?
A marital settlement agreement is a written contract between spouses that resolves every financial and parenting issue between them.[2] Florida courts call it an MSA, and in an uncontested divorce the MSA basically is the divorce. The judge reads it, confirms it is reasonable, and signs a final judgment that incorporates the agreement by reference.
A complete Florida MSA covers:
| Topic | What you decide |
|---|---|
| Real property | Who keeps the home, or how sale proceeds split |
| Personal property | Cars, furniture, bank accounts, investments |
| Debt allocation | Who pays which credit cards, loans, mortgages |
| Alimony | Amount, duration, and type (bridge-the-gap, rehabilitative, durational) |
| Parental responsibility | Shared or sole decision-making for children |
| Timesharing schedule | Where kids live and when |
| Child support | Amount, calculated using Florida's income shares formula |
| Health insurance | Who covers children, how uncovered expenses split |
| Tax issues | Who claims dependents, how to handle refunds or liabilities |
Florida Statutes section 61.079 governs marital agreements. They must be in writing, signed by both parties, and executed before two witnesses.[3] The statute does not require notarization for an MSA used in a divorce, but every Florida court I have checked expects a notarized signature anyway. Get it notarized.
If you have minor children, the agreement also has to line up with Florida's child support guidelines under section 61.30, and the timesharing arrangement must serve the best interest of the child under section 61.13.[4] A judge can reject those sections even when everything else looks clean.
For a walk through the divorce papers you file alongside the MSA, that linked article breaks down the full packet.
How is a Florida marital settlement agreement different from a postnuptial agreement?
The two documents look nearly identical on the page but do different jobs.
A postnuptial agreement is signed while you plan to stay married, or at least while divorce is not the immediate move. Think of it as estate planning for the marriage: you decide now how assets and debts would be handled if things fell apart later. Couples sign these after a financial windfall, after one spouse starts a business, or after a rough patch when they want clearer rules going forward.
A marital settlement agreement is signed once you have decided to divorce and are working out terms. It is a divorce-specific document a court acts on right away.
Here is where they meet. A postnuptial agreement signed before you file can simply be attached to or folded into your MSA when you do file. The court checks whether it was signed voluntarily, whether both parties had a fair chance to consult a lawyer, and whether the terms were not unconscionable at signing.[3] Florida courts have enforced postnuptial agreements even when one spouse skipped hiring a lawyer, as long as there was no fraud or coercion.
Watch one thing. If you signed a postnuptial agreement years ago and the facts have shifted hard (a major illness, a child born since, a big income swing), those new facts can sometimes justify a court modifying the child support or timesharing sections even when the financial terms hold. A court cannot be stripped of its power over children the way it can over marital assets.
Can a separation agreement cover child custody and child support in Florida?
Yes, and it has to if you have minor children. Florida will not grant a divorce without a parenting plan.[4] That plan can live inside your MSA or come in as a separate document, but either way it has to exist.
Florida cut the words "custody" and "visitation" from its statutes in 2008. The state now uses "parental responsibility" (who makes decisions) and "timesharing" (where children physically are). That distinction matters when you draft. Use Florida's vocabulary or the clerk may bounce your filing.
Child support is not optional and not fully up for negotiation. Florida runs an income shares model under section 61.30.[4] Both parents' net incomes feed the formula, adjusted for health insurance, childcare, and the actual number of overnights each parent gets. You can agree to more than the guideline number. You generally cannot agree to less unless you show the court a specific reason the deviation serves the child's best interest.
The child support calculator here gives you a baseline number before you draft, which cuts a lot of back-and-forth with your spouse.
Alimony sits separately under section 61.08, and Florida rewrote its alimony law in 2023. Permanent alimony is gone as of July 1, 2023.[5] If your draft predates that date and includes permanent alimony language, fix it before you file.
What happens to property and debt in a Florida separation agreement?
Florida is an equitable distribution state, and equitable does not mean 50/50. A court starts from the assumption of equal division and then adjusts based on a list of factors in section 61.075.[6] When you write your own MSA, you can split things however you and your spouse agree, as long as the split is not unconscionable.
Marital property is almost everything acquired during the marriage, no matter whose name is on it: the house, retirement accounts, the car you bought last year, the joint savings. Non-marital property is generally what you owned before the marriage or received as a gift or inheritance to you alone, as long as you never commingled it.
Commingling is a real trap. Inherit $40,000, drop it in a joint checking account, then run household expenses through that account, and good luck proving it is still separate. The burden falls on the person claiming separate property to trace the money.
For the house, your agreement needs to say one of three things: one spouse keeps it and refinances into their own name within a set window (90 to 180 days is common), you sell and split proceeds by a defined percentage, or one spouse stays temporarily with a future sale date locked in. Language like "we will figure out the house later" is an enforcement nightmare.
Retirement accounts need a separate court order called a Qualified Domestic Relations Order (QDRO) to move funds without triggering taxes and penalties. Your MSA can say how to split the 401(k). The QDRO is the separate legal tool that actually does it. Budget extra time and money for that step.
Debt division in your agreement binds the two of you but does nothing to the creditor. If your spouse agrees to pay the joint credit card and then doesn't, the bank still comes after you. The only real protection is refinancing or transferring the debt out of joint liability altogether.
How do you make a Florida separation agreement legally enforceable?
Enforceability comes from two places: contract law, and once you file for divorce, a court order.
As a contract, your MSA or postnuptial agreement is enforceable the day both parties sign it before witnesses. Florida Statutes section 61.079 requires two witnesses to the signing of a marital agreement.[3] If you later divorce and your spouse breaks the agreement before the court incorporates it, you sue for breach of contract in circuit court.
Once the judge folds the MSA into the final judgment of dissolution, a violation becomes contempt of court. That is a far stronger lever, because the non-complying spouse can face fines or even jail. This is why you want your MSA incorporated, not merely referenced, in the final judgment.
To make the agreement hold up:
1. Both parties sign voluntarily, with no fraud, duress, or coercion. 2. Both parties should have had a fair chance to consult a lawyer, even if they passed. 3. There is full financial disclosure. Florida requires both spouses to exchange financial affidavits during the divorce.[7] Hiding assets voids the agreement. 4. The terms are not unconscionable at the time of signing. 5. Child-related provisions meet Florida's best interest standard when a court reviews them.
One honest caveat. If your estate is complex, if one spouse out-earns the other by a wide margin, or if a family business is in play, paying a divorce attorney to review the agreement before you sign is money well spent. For a plain situation with modest assets, a well-drafted MSA that both spouses actually understand is usually fine.
How do you file a separation agreement in Florida if you decide to divorce?
Once you have a signed MSA, filing an uncontested divorce in Florida follows a set sequence.
First, confirm residency. At least one spouse must have lived in Florida for six months before filing.[8] You file in the circuit court of the county where that spouse lives.
Second, prepare the petition. In an uncontested case, both spouses sign a Joint Petition for Simplified Dissolution of Marriage (if you have no minor children and meet the simplified rules) or a Petition for Dissolution of Marriage with a response.[9] The Florida Courts self-help program has forms for both routes at flcourts.gov.
Third, attach your MSA. You file the signed, witnessed, and ideally notarized agreement with your petition. If you have children, attach the parenting plan too.
Fourth, pay the filing fee. Florida circuit court fees are set by statute. As of 2025, the standard fee is $408 in most counties for a petition with minor children and $301 for a petition with no minor children.[10] Some counties tack on small administrative surcharges. Cannot afford it? Request a waiver using the Application for Determination of Civil Indigent Status.
Fifth, serve your spouse or have them sign an acceptance of service. When both spouses cooperate, a signed Waiver of Service of Process filed with the court skips the process server entirely.
Sixth, attend the final hearing. In some counties the judge grants the divorce at a short hearing (often 10 to 15 minutes) after reading the paperwork. Other counties handle simple uncontested cases on the papers alone, no hearing. Call your clerk's office to confirm local practice.
DivorceClear's $149 document packet includes a state-specific MSA, the petition, the financial affidavit, and parenting plan templates pre-formatted for Florida courts, if you want a structured start rather than blank forms.
For a closer look at alimony terms to write into your agreement, that guide covers Florida's 2023 statutory changes in detail.
How much does a separation agreement cost in Florida?
The cost depends on who drafts it and whether the court gets involved at all.
If you are only creating a postnuptial agreement with no divorce plan, you pay the court nothing. A family law attorney to draft or review the document typically runs $500 to $2,500 depending on complexity and hourly rate. In South Florida markets, family law hourly rates run roughly $250 to $500 per hour.[11]
If you are filing for divorce and incorporating your MSA:
| Cost item | Typical range |
|---|---|
| Court filing fee (no children) | $301 |
| Court filing fee (with children) | $408 |
| Process server or sheriff | $40 to $75 (avoidable if spouse signs waiver) |
| QDRO preparation (if retirement accounts) | $300 to $1,500 per account |
| Attorney review of MSA | $300 to $1,500 |
| DIY document packet | $0 to $200 |
| Full attorney-drafted uncontested divorce | $1,500 to $3,500 |
For most plain uncontested divorces with no business interests and no pension accounts, your out-of-pocket cost is the filing fee plus whatever you spend on document prep. The Florida Bar's consumer information puts the typical DIY uncontested divorce, with no attorney retained, at roughly $500 to $800 total.[11]
Here is my honest take on where the money goes. Paying a lawyer to review the final draft of your MSA before you sign is not waste. Paying a lawyer to run a full-service case for a two-person split with a rented apartment and no kids usually is.
What if only one spouse wants a separation agreement?
An MSA needs both signatures. You cannot force your spouse to sign one.
If your spouse refuses to negotiate or sign, your options narrow. You can file for divorce anyway. Florida needs no grounds beyond the marriage being "irretrievably broken" under section 61.052,[8] and a contested divorce plays out through the court. The judge then decides property division, support, and parenting terms on statutory factors instead of your preferences.
Some couples bring in a mediator when direct negotiation stalls. Florida actually requires mediation before trial in most circuit court family cases.[12] Mediation costs money (typically $150 to $300 per hour for a private mediator, split between spouses), but it almost always beats the cost of a trial.
What if your reason for wanting a separation agreement is practical separation without divorce? Keeping a spouse on health insurance, qualifying for Social Security benefits on a spouse's record, or waiting out a financial situation. Florida's lack of a legal separation status leaves a real gap here. Some people in that spot genuinely have no good option except to stay technically married while handling finances separately by private agreement, or to divorce.
One thing your spouse cannot do: empty joint accounts or transfer marital property once a divorce is filed. Florida courts routinely issue automatic restraining orders on marital assets the moment a petition hits the docket.
How does Florida compare to states that have legal separation?
A quick comparison puts Florida's approach in context.
Maryland requires spouses to live separately for six months (with no children) or twelve months before filing for an absolute divorce, and that separation period is an eligibility requirement, not an optional cooling-off window.[13] During the Maryland waiting period, spouses can sign a formal separation agreement covering all the same financial and parenting topics an MSA covers in Florida. Maryland courts can also grant a "limited divorce" that works like legal separation in other states.
Florida has no waiting period and no separation requirement. You can file the same week you decide to and finalize in as few as 20 days when there are no children and no contested issues.[8]
| Feature | Florida | Maryland |
|---|---|---|
| Legal separation status | No | Yes (limited divorce) |
| Waiting/separation period | None | 6 or 12 months |
| Minimum divorce timeline | ~20 days (simplified) | Several months |
| Agreement enforceability | Contract + incorporation into decree | Same |
| Alimony reform (2023) | Permanent alimony eliminated | Not changed |
For people moving to Florida from a state with legal separation, this difference is jarring. The tools to reach the same practical goals exist in Florida. The route just looks different.
Common mistakes to avoid in a Florida separation agreement
A few errors show up over and over in DIY Florida MSAs that clerks kick back or that cause enforcement trouble later.
Vague property descriptions. "Wife keeps the house" is not enough. You need the full legal property description (pull it off the deed), the current mortgage lender, and a firm deadline for refinancing or sale.
Skipping the financial affidavit. Florida requires both spouses to file a Family Law Financial Affidavit in any case with financial issues.[7] Try to skip it in an uncontested case and the clerk rejects your filing.
Ignoring the marital home's mortgage. If your spouse keeps the house but both names sit on the mortgage, the agreement has to include a timeline for pulling your name off. "We'll refinance when we can" is not a timeline. Departing spouses have watched their credit crater years after the divorce because the staying spouse stopped paying a mortgage the agreement never pinned down.
Botching the retirement split. Your MSA can say "husband's 401(k) splits 60/40," but without the QDRO the account never moves. Plenty of people sign the MSA, get the divorce, and find out two years later the account still sits untouched because nobody prepared the QDRO.
Using custody language. Florida courts use parental responsibility and timesharing. Agreements that say "custody" are not automatically void, but some clerks flag them and some provisions turn ambiguous under Florida's statutory framework.
Skipping witnesses. Two witnesses are required for marital agreements under section 61.079.[3] A single signature on a notary line does not cut it on its own.
Where to get help with a Florida separation agreement
Florida's court system has better self-help resources than most states. The Florida Courts Self-Help Center at flcourts.gov offers approved family law forms, instructions, and county-specific guidance at no charge.[9] Most circuit court clerks also run a self-help center or family law facilitator's office right in the courthouse.
Florida Legal Services (floridajustice.org) provides free or low-cost help for people who qualify on income. The Florida Bar Lawyer Referral Service can connect you with a family law attorney for a low-cost initial consultation if you want a professional to look over your draft before you sign.
For online document preparation without full attorney representation, the DivorceClear $149 Florida packet includes a customizable MSA, parenting plan, financial affidavit, and petition forms reviewed against Florida's current requirements.
For context on what the broader divorce rate in America looks like and where Florida sits, that linked article carries current Census Bureau data.
This article is general information, not legal advice. Laws change and situations vary. If your case involves complex assets, a business, significant debt, or conflict with your spouse, talk to a licensed Florida family law attorney before you sign anything.
Frequently asked questions
Can I get a legal separation in Florida instead of a divorce?
No. Florida statutes do not provide for legal separation. You stay legally married until a judge enters a final judgment of dissolution. What you can do is sign a marital settlement agreement or postnuptial agreement that divides property, sets support, and arranges parenting while you remain technically married. Those agreements are enforceable contracts but do not change your marital status.
Does a separation agreement have to be filed with the court in Florida?
Not if you are not divorcing. A postnuptial or separation agreement is a private contract and needs no court filing to be enforceable. Once you file for divorce, you submit the signed MSA to the circuit court as part of your paperwork, and the judge incorporates it into the final judgment, turning it from a contract into a court order.
How long does an uncontested divorce take in Florida with a signed agreement?
Florida has a mandatory 20-day waiting period after the respondent is served before a court can finalize a simplified dissolution.[8] In practice, add time for the clerk to process the filing, schedule a hearing (if your county requires one), and enter the final judgment. Most uncontested divorces with a complete agreement close in 30 to 90 days. Counties vary a lot in backlog.
Can a Florida separation agreement include alimony?
Yes, and you should address it directly whether or not alimony is being paid, because silence breeds disputes later. Since July 1, 2023, Florida no longer allows permanent alimony.[5] Available types are bridge-the-gap (up to two years), rehabilitative (with a specific plan), durational (capped by the length of the marriage), and temporary. Your agreement should state the type, amount, start date, and end date or termination event.
What makes a Florida separation agreement invalid?
A Florida marital agreement is unenforceable if it was signed under fraud, duress, or coercion; if one spouse had no fair chance to consult an attorney; if material financial information was hidden; or if the terms were unconscionable at signing. Child support and timesharing terms can also be rejected or modified if they fail the best interest standard, regardless of what the agreement says.
Do both spouses need a lawyer to sign a Florida separation agreement?
No, but both spouses should understand what they are signing. Florida courts have enforced agreements where neither party had counsel. The risk without a lawyer is agreeing to something worse than what a court would have awarded you, or missing a required term. At minimum, having an attorney review the final draft is worthwhile if any assets, children, or significant income are involved.
How do I divide a 401(k) or IRA in a Florida separation agreement?
Your MSA states how the account divides (by percentage or dollar amount). A separate document called a Qualified Domestic Relations Order (QDRO) then goes to the plan administrator to actually move the funds without triggering taxes or early-withdrawal penalties. For IRAs the mechanism is a transfer incident to divorce rather than a QDRO. Neither happens automatically; you take that separate step after the divorce is final.
Can a separation agreement in Florida be modified after signing?
Before it is incorporated into a divorce decree, it is a contract and can be modified if both parties agree in writing. After incorporation, changing financial terms generally requires both parties' consent or proof of a substantial change in circumstances. Child support can be modified by either party on a showing of a significant, involuntary change in income or the child's needs, no matter what the agreement said.
What is the difference between a separation agreement and a divorce decree in Florida?
A separation agreement (MSA) is a contract the spouses create. A divorce decree is a court order a judge enters. The decree can incorporate the MSA, making its terms enforceable by contempt. Without incorporation, you can only enforce the MSA as a contract, which is slower and pricier. Always make sure the final judgment says the agreement is "incorporated by reference" and "merged into" the decree.
Can I use an online separation agreement template for Florida?
You can start with a template, but it has to use Florida's statutory language, require two witnesses, cover every required topic (including a parenting plan if you have children), and be notarized. Generic templates from national sites often miss Florida-specific pieces like the Family Law Financial Affidavit or the parental responsibility and timesharing framework under section 61.13. Florida Courts' own forms at flcourts.gov are a reliable free starting point.
Does Florida require a waiting period or separation period before divorce?
Florida has no separation requirement before filing. The only mandatory waiting period is 20 days after the respondent is served before the court can enter a final judgment.[8] No-fault divorce is available from day one, with the only ground being that the marriage is "irretrievably broken."
What happens if my spouse violates our separation agreement in Florida?
If the agreement is not yet incorporated into a court order, you sue for breach of contract in circuit court. If it has been incorporated into the final decree, a violation is contempt of court. In a contempt proceeding, the judge can order payment of unpaid amounts, award attorney's fees to the complying spouse, impose fines, and in serious cases order jail time for the non-complying party.
Is a separation agreement the same as a postnuptial agreement in Florida?
They are close cousins, not identical. A postnuptial agreement is signed while spouses plan to stay married, setting out what happens if they eventually separate or divorce. A marital settlement agreement is signed when divorce is the plan and covers the specific terms of that divorce. Both are written contracts, both need two witnesses under section 61.079, and a postnuptial agreement can be folded into an MSA when you file.
How does a Florida separation agreement handle health insurance for children?
Your MSA must state which parent provides health insurance for the children and how uncovered medical, dental, and vision costs split. Florida's child support guidelines factor in the cost of children's health insurance premiums.[4] If the insuring parent's circumstances change (job loss, new employer), the agreement should spell out who then covers the children and within what timeframe.
Sources
- Florida Legislature, Florida Statutes Chapter 61 (Dissolution of Marriage): Florida statutes provide for dissolution of marriage but no legal separation status
- Florida Courts, Family Law Self-Help: Marital Settlement Agreement overview: Florida courts use marital settlement agreements to resolve property, support, and parenting in uncontested divorces
- Florida Statutes section 61.079, Premarital and postmarital agreements: Marital agreements must be in writing, signed by both parties, and executed before two witnesses; section 61.079 governs enforceability requirements
- Florida Statutes section 61.13, Custody and support of children; visitation rights: Florida requires a parenting plan for all divorce cases with minor children; timesharing and parental responsibility must serve the best interest of the child
- Florida Statutes section 61.08 (2023 amendment), Alimony: Florida eliminated permanent alimony effective July 1, 2023; available forms are bridge-the-gap, rehabilitative, durational, and temporary
- Florida Statutes section 61.075, Equitable distribution of marital assets and liabilities: Florida is an equitable distribution state; courts begin with equal division and adjust based on statutory factors
- Florida Courts, Family Law Financial Affidavit instructions: Florida requires both spouses to file a Family Law Financial Affidavit in any dissolution case involving financial issues
- Florida Statutes section 61.052, Dissolution of marriage: Florida requires six months residency before filing; the only ground is irretrievable breakdown; no separation period required; 20-day waiting period after service before final judgment
- Florida Courts Self-Help Center, Family Law Forms: Florida Courts provides approved family law forms including the joint petition for simplified dissolution and the standard dissolution petition at no charge
- Florida Statutes section 28.241, Filing fees for trial and appellate courts: Florida circuit court filing fee is $408 for dissolution with minor children and $301 for dissolution without minor children as of 2025
- The Florida Bar, Consumer Information: Fees and Costs in Family Law Cases: Florida family law attorney hourly rates range from approximately $250 to $500 per hour in South Florida markets; typical DIY uncontested divorce cost approximately $500 to $800 total
- Florida Rules of Family Law Procedure, Rule 12.740, Family mediation: Florida requires mediation before trial in most circuit court family law cases
- Maryland Courts, Divorce information page: Maryland requires spouses to live separately for six months (no children) or twelve months before filing for absolute divorce; a limited divorce functions as legal separation