If your marriage stands on fragile ground, such as the aftermath of an affair or simply drifting apart, you may be considering your options.

If divorce is too threatening now, but the marriage is too stifling, you may need time alone to rediscover yourselves and each other. Psychologically, your separation may be the right choice to recenter yourselves and possibly to reclaim your relationship chemistry, but pragmatically, there are other considerations.

Specifically, Florida doesn’t allow legal separation. In the state of Florida, like only a few other states, you are *either* married or divorced.

Marital liability doesn’t stop just because you two decide to live apart, perhaps date other people, and essentially become single for a while. The law still sees your finances as a piece of your marital union, debts included.

You aren’t helpless by a long shot, despite Florida’s lack of legal separation. You can still take the reins on your financial planning for possible divorce.

Contracts make the world go round, and they can preserve your financial and psychological health during separation.

In this case, the contract is a postnuptial agreement. Postnuptial agreements, or postnups, are legal contracts created during the marriage (i.e., after the wedding vows) and that are executed upon signing. Prenuptial agreements are the same type of legal contracts, but they are created before the wedding and executed upon marriage. We offer both mediated prenups and mediated postnups.

Your postnup can be the substitute for legal separation by preserving and allocating assets, assigning them to a partner, and determining liability for debts created during this period.

Decide how marital assets should be preserved for a certain partner, or determine how marital assets can be used to enable one partner to leave the marital home without undue financial stress to either partner.

Manage debts. Whether it’s your debt, your partner’s debt, or marital debt (i.e., shared by both of you), now is the time to finalize in writing how you will manage the uglier side of your finances.

Ask yourself if money should be set aside to help one partner get back in the workforce if divorce appears more than likely and record your mutual decision in the postnup.

Decide if the departing partner should be responsible for utilities and repairs at the marital home, or for the costs associated with a pet.

Make choices now, during a period of relative calm, for whether alimony, otherwise known as spousal support, should be part of a divorced settlement and on what terms.

Delineate how your marital property acquired over the years will be divided if divorce occurs.

See if your premarital property (i.e., the assets that you brought into the marriage with you) has become mingled with marital property: now is the time to untangle assets and assign them to a partner. The trick is once you have made such decisions regarding marital versus nonmartial assets in your postnup, you must stick to the rules you have created so that you don’t revert to mingling again.

The catch: under Florida law, you cannot make an independent determination about child support numbers, which are handled by the Florida family law courts. If you insist on drafting some guidance in the postnup about child support, the amount and duration must exceed Florida’s child support calculation guidelines.

Besides your mediator, the expert who can give you the most privacy while calculating these numbers is your CPA. CPAs can guide estranged couples through mandatory financial disclosure in a less adversarial, less threatening setting.  They're the best professional to bring with you to mediation.  To learn more about CPAs in the context of prenups, postnups, and divorce, read here.

You may also plan for your children’s future in your postnup, whether or not divorce is in the picture, via a trust instrument that is best suited for your unique circumstances.

Your postnup, just like a prenup, may be handled through mediation, which involves both of you working with a mediator, or through representation, which means separate attorneys are representing each partner. To understand more about the differences between mediation versus representation by an attorney, please see our blog post.

Separation may be the best thing for your marriage, or it may be the best thing to put your life back in your control. However, your happiness and standard of living shouldn’t suffer because your marital assets and debts were left hanging in the breeze.

You can control these outcomes more effectively with a postnup so that both sides can feel secure about the future – however the future works out.

To explore your options, please talk with us.

We offer remote consultations via Zoom to work with your schedule. Complete the questionnaire to initiate a free consultation.