How to File for Legal Separation in Alabama

Sometimes, a married couple wants to live apart and have an enforceable court order regarding spousal support and assets, but they do not want to get a divorce.

Alabama law allows such couples to seek a legal separation, which can accomplish those goals.

An experienced Huntsville divorce attorney can explain how to file for a legal separation in Alabama and walk you through the process while advocating for your best interests.

What is a Legal Separation Under Alabama Law?

In Alabama, you file for a legal separation in the same court as you would for a divorce. The court papers are nearly identical, with the exception of substituting the words “legal separation” for the words “dissolution of marriage” or “divorce” and not declaring that the marriage is dissolved.

AL Code § 30-2-40 says that if you meet all of the following requirements, the court may enter a decree of legal separation:

• The case meets the same jurisdiction requirements that a dissolution of marriage lawsuit requires. If the court would not have jurisdiction over a divorce case involving these parties, it cannot rule on a legal separation lawsuit.
• One of these three factors is true:
  • Both parties wish to live separately and apart.
  • The marriage is irretrievably broken.
  • The spouses have a complete incompatibility of temperament.
• If it has jurisdiction to do so, the court has addressed the issues of child custody and child support, using the Rule 32 child support guidelines. 

A legal separation must meet the same standards as a divorce case, but the parties are still married at the end of the matter. As such, the court will use the same child support calculation and evaluate the same custody factors in a legal separation as it would in a divorce.

Reasons a Couple Might Prefer a Legal Separation to a Divorce

The end of a significant relationship is fraught with emotions, whether the people involved get a divorce or a legal separation in Alabama.

Here are some of the situations that might motivate a person to seek a legal separation instead of a divorce: 

• The spouse seeking legal separation knows the relationship is over but is not emotionally ready at that time to break all the legal ties of marriage.
• Religious or moral convictions might cause a person to find divorce unacceptable. 
• The parties might have a prenuptial agreement that requires them to be married a certain number of years before receiving certain financial benefits from the other, like an inheritance. Be aware, however, that many prenuptial agreements treat a legal separation the same as a divorce. You will want to check the language of the document. 
• The parties might be unable to continue living together but want to preserve the legal status of marriage at least until the marriage lasts for 10 years or longer. A spouse can qualify for Social Security benefits based on the other spouse’s earnings record when they have been married for 10 years.
• Both spouses might want to make sure that divorce is the right decision. A legal separation allows them to experience living apart without actually severing the bonds of the marriage. 

Whatever the reason for seeking a legal separation, if either party wants to move forward with a divorce later, they will have to take legal action. Contrary to what some people might think, a legal separation does not automatically convert into a divorce with the mere passage of time in Alabama. 

Modifying the terms of an Alabama legal separation is similar to modifying a divorce decree. If both parties consent in writing and the court ratifies their agreement, they can modify or dissolve their legal separation.

When the parties do not reach an agreement, a court could order a modification of the legal separation terms if one party proves a material change of circumstances. 

Separate Maintenance – Another Divorce-Related Option in Alabama

Alabama provides a second option for married couples living apart who do not wish to get divorced. 

Alabama State Bar says that a wife can request that a court order “separate maintenance” if the spouses are living apart through no fault of the wife and the husband is not paying spousal or child support. 

In a separate maintenance case, the wife does not have to show grounds that would support the dissolution of the marriage. It is entirely up to the court to decide whether to award separate maintenance and the amount of such payments. The court will base the award on the financial needs of the wife and dependent minor children, as well as the husband’s income. 

Get Help With Legal Separation or Separate Maintenance in Alabama

With either a legal separation or separate maintenance, the parties are still married and cannot marry anyone else until they finalize a divorce. Summit Family Law can help with your legal separation or maintenance case. We take the time to listen to you and answer your questions, then walk you through your legal options. 

You do not have to go through this experience alone. We will be there with you throughout the entire process. Call (256) 859-7277 or reach us online today to get started with a free consultation.

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