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Separation Agreements

On occasion a couple will agree to stop living together but not to formally divorce. They will enter into a separation agreement. However, if the agreement does not meet with some strict legal requirements, it may not be useful in the event of a divorce or court challenge.

Before any marital settlement agreement will be approved by a court, there must be financial disclosure designed to insure that both parties have made full disclosure of what they own and what they owe. The minimum required for this is an exchange of financial affidavits in the form prescribed by the Florida Supreme Court. If a party later finds out that the other spouse lied on his or her affidavit, the agreement can be set aside by the court. Likewise, if a spouse later decides that he or she made a bad deal, and the affidavits are accurate, the court will not allow the matter to be reopened because the complaining party had adequate access to the facts and cannot be protected from making a bad decision.

In addition, under Florida law a party cannot contract away the legal obligation of spousal support before the entry of a final judgment dissolving the marriage and the obligation to pay or receive child support can never be waived. Accordingly, any separation agreement regarding the entitlement to alimony can be later challenged as not meeting the legitimate needs of the party needing support. In addition, any provision regarding child support can be challenged at any time if it does not meet the minimum requirements of the statute governing child support.

An enforceable separation agreement must include a provisions showing that there was full and fair financial disclosure, must meet the minimum requirements for child support and must meet the minimum requirements for alimony. In the absence of a court challenge, the parties can agree to anything, but because of the strict requirements regarding disclosure of finances and regarding child support and alimony, a document crafted by a non-lawyer may not be enforceable if challenged in court.

However, an agreement that does meet all of the requirements of a formal marital settlement agreement will be enforceable by the court without need of an action to dissolve the marriage and can be made a part of any future final judgment for dissolution of the marriage.

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