Divorce After Long Separation: Why Waiting Can Put Your Assets at Risk
In most situations, if you have lived in Florida for at least six months, you can generally file for divorce after long separation here even if your spouse lives in another state. Florida law requires one spouse to reside in the state for six months before the petition is filed. Florida is also a no-fault state, so the ground is that the marriage is irretrievably broken, and it does not require a set period of separation first.
The harder question is related to finances. A Florida court can usually end the marriage, but it divides property and awards alimony only if it has personal jurisdiction over your spouse. Whether it does depends on facts such as whether you ever lived in Florida as a married couple. Because the answer turns to your history, it is worth understanding before you file.
Can a Florida Court Handle a Divorce After Long Separation When Your Spouse Lives in Another State?
A Florida court can generally grant a divorce after long separation despite a spouse’s residency. Deciding property, support and alimony is a separate matter. In Marshall v. Marshall, a Florida appeals court explained that to fairly conclude property disputes, support and equitable distribution, the court must have personal jurisdiction over both parties.
When does a Florida court have power over an out-of-state spouse?
Personal jurisdiction over a nonresident spouse can come from several sources:
- Personal service in Florida, voluntary appearance or waiver of service. A Florida Bar study guide lists these as ways to establish it. If your spouse agrees to participate, jurisdiction is much simpler.
- Florida’s long-arm statute. Section 48.193 allows jurisdiction over alimony, child support and property division when the couple maintained a home together in Florida at the time of filing or when the defendant lived in Florida before the action began.
Courts examine these facts closely. In Marshall, the court focused on whether the couple had maintained a Florida home while married or the husband had lived here before filing. In Caputo v. Eggleston, the court held that owning a home in Florida was not enough to reach the husband for alimony and equitable distribution.
What if the Florida court cannot reach your spouse’s finances?
You generally have three paths. Ideally, you can negotiate a settlement and have your spouse participate voluntarily. Alternatively, you can build a Florida case around the connections that do exist. Or your spouse could file in the state they reside in, which would have its own rules. Some states allow a divorce to be filed after only 90 days of residency. This is one reason waiting can be risky. Your spouse may be able to choose to file first.
Does A Separation Of Several Years Change How Assets Are Divided?
Not automatically. Living apart does not end the marital estate in Florida. The equitable distribution statute sets the cutoff for identifying marital assets and liabilities as the earliest of the date of a valid separation agreement, another date set by such an agreement, or the date the dissolution petition is filed. In Schmitz v. Schmitz, the appeals court applied the filing date because the parties had no separation agreement.
In practical terms, if you and your spouse never signed a valid separation agreement, income, retirement contributions, property, and debts accumulated during your years apart may still be part of the marital estate. The statute lets the court value assets as of a date it finds just and equitable, so valuation can still be argued. Assets that were owned before the marriage or received as a gift or inheritance may be non-marital, but the lines blur if funds were mixed. Other state’s rules can differ, which matters if the case ends up there.
How Does the Length of Separation Affect Alimony?
Separation does not shorten the marriage for alimony purposes. Florida measures marriage length from the wedding date to the date the petition is filed, so years of separation still count as marriage. Florida’s 2023 reform eliminated permanent alimony and tied durational limits to short-, moderate-, and long-term marriage categories, with long-term beginning at 20 years. If your marriage is near a category line, the filing date can matter. Alimony also depends on need, ability to pay, and other statutory factors. For more, see the firm’s page on alimony.
What Are the Risks of Letting a Long Separation Continue?
From our practical observations, one may encounter the following situations by letting a separation continue:
- Your spouse may file first. If your spouse files for divorce from another state, you may have to respond in their home state under that state’s rules.
- The marital estate keeps growing. Without a valid separation agreement, the cutoff generally stays at the filing date, so more assets and more debt can be pulled in.
- Older conduct can fall outside the lookback. The statute allows the court to consider intentional dissipation of marital assets within two years before filing. The longer you wait, the more history may fall outside that window.
- Records get harder to trace. Accounts close, statements are discarded, and memories fade.
- You stay legally married. That can affect beneficiary designations, estate planning and tax filing status. A family law attorney and tax professional can explain how in your case.
How Do You Get a Divorce After Long Separation For Years?
- Confirm your Florida residency. You need six months of residence before filing.
- Gather financial records. Collect tax returns, retirement statements, deeds, and debt records. Our guide on what to do first when a spouse wants a divorce lists helpful documents.
- Map assets and debts. Include retirement accounts, real estate and anything held in your spouse’s name.
- Decide whether to seek an agreement or file. If you and your spouse can agree on all aspects of a divorce, an uncontested divorce may be possible. Our divorce lawyer page describes how agreed cases work. If not, the case moves through petition, response, discovery, mediation, and possibly litigation.
- Plan for service on your spouse. He must be formally notified and how that happens affects jurisdiction.
Costs and timelines depend mainly on whether your spouse cooperates, how complex your finances are and whether jurisdiction is disputed. If you have minor children, additional rules may apply to custody and support.
Talk to a St. Petersburg Divorce Lawyer About Your Options
A divorce after long separation with a spouse in another state raises questions about where to file, what a Florida court can decide and how to protect your share of the marital estate. The Law Office of William B. Bennett has practiced family law in St. Petersburg for over 25 years and represents clients throughout Pinellas County and the Tampa Bay area. We can help. Call 727.821.8000 or contact us online to schedule a free consultation. You will learn where you stand and whether or not you decide to move forward.
This article is general information, not legal advice. Reading it does not create an attorney-client relationship.
Tagged with: Alimony, Asset Distribution, Divorce, Divorce Lawyer, Family Law, Out of State, Property
Posted in: General Legal Processes