Legal Separation in Alabama FAQs

It's no surprise that relationships are complicated. If you and your spouse have reached an impasse, divorce may not be your only option in moving forward. Learn about the process for legal separation in Alabama.

By , Attorney · Cooley Law School
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Contrary to popular belief, divorce isn't the only legal method to end a marital relationship. Many states, including Alabama, offer married couples the option to terminate their marriage by legally separating and without becoming a divorcee. This article will answer fundamental questions about legal separation in Alabama.

What's the Difference Between Separation and Divorce?

Divorce is a legal process to end a marriage. During the procedure, the couple (or a judge) will divide marital property, assign custody and child support obligations, and determine whether other financial support is necessary for either spouse. In the end, the couple's relationship is legally dissolved, meaning either party can remarry.

Legal separation is like a divorce in that the couple or judge will decide the same legal issues, however, at the end of the legal separation process, the couple is still legally married. Although the marriage is over in a sense (since you are living separate and apart), if either spouse wants to remarry, that spouse will need to ask the court to convert the case into a divorce.

Why Do Couples Choose to Separate Rather Than to Divorce?

Relationship issues are intensely personal. It's not always clear why a couple chooses separation instead of divorce, but some common reasons may include:

  • a possibility of reconciliation (which makes separation more appealing because it's not as "final" as divorce)
  • at least one spouse doesn't want the stigma of being divorced
  • either spouse has a religious, social, or other personal objection to divorce
  • the couple intends to live separate and apart, but wants a written agreement to address custody and child support, or
  • one spouse needs the other to continue providing medical insurance.

What Does Separation Mean in Alabama?

In Alabama, a legal separation requires a court order. For couples to qualify for a legal separation, one spouse will need to file a request with the court asking for court intervention. The petition (application) will need to demonstrate the following:

  • at least one spouse meets the six-month residency requirement, and
  • at least one spouse wants to live separate from the other.

Legal separation is a significant life change, and like divorce, the court takes it very seriously. Before the judge grants your application, you'll need to provide the court with a legal reason, or ground, for your request. You can use the same grounds as a no-fault divorce, which means you need to convince the court that your marriage has suffered an irretrievable breakdown, or that you and your spouse are incompatible.

In addition to requesting the separation through the court and proving grounds, couples with minor children must also tell the court how they plan on handling custody, visitation, and support issues.

While legally separated, both spouses are free to live apart, spend their funds, and even begin new relationships. If either spouse earns money or obtains property after the legal separation, the court will consider this to be separate property in any future divorce proceedings.

If either party wants to remarry, that spouse will need to ask the court to convert the separation into a divorce, which terminates the marriage.

What Is a Trial Separation?

If one or both of you are considering divorce or legal separation, it might be beneficial to think about a trial separation, which is where you live apart for a period and reassess the relationship before involving the court. During this temporary separation, the couple can verbally agree how to handle custody and visitation, child support, or even how to pay marital bills and in situations where the spouses have an open line of communication, this may work out fine. However, it's no secret that if you're considering a trial separation your communication skills and relationship aren't as strong as they could be, so verbal agreements and best intentions might not be best for the long-term.

In the end, you'll either decide to reconcile or move forward with a permanent legal separation or divorce.

What Is a Separation Agreement?

If you've ever watched an episode of Judge Judy on daytime television, you know that the judge tosses out many cases because there's no written agreement between the parties and neither side can prove their case.

While a legal separation is more severe than a car sale, if there's no written agreement, there's no way for the judge to enforce your terms. Relationships are complicated, and if your spouse is on the fence about separating or divorcing, you might not want to rock the boat by asking for a written agreement. Verbal agreements may be acceptable in trial separations, but if you ask the court for a legal separation, you'll need a written separation agreement.

What Should My Separation Agreement Cover?

Separation agreements should cover everything you would expect in a divorce agreement, including:

If you can't agree on everything, you can ask the court to decide for you.

Should I Hire an Attorney?

Even if you and your spouse agree on the terms of your separation, it would be beneficial to ask an attorney to draft the actual separation agreement for you. Once the attorney completes the document, you should give your spouse the opportunity to have it independently reviewed by an attorney.

While it is possible for you to draft your agreement, you should understand that once a judge signs the document, it's legally binding, so if you make a mistake, you will have to live with it or ask the court to modify it later.

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