What is Legal Separation in Alabama?
Legal separation in Alabama is a court sanctioned arrangement in which a married couple isolates their lives and property from one another under the law, while remaining, in essence, legally married.
In some respects, it’s like a divorce. But where the two methods differ is that divorce "dissolves" the relationship forever, while legal separation intends to leave the legal union intact (albeit with specific terms and conditions for how it is managed) so the couple can re-unite at some point in the future, if they so desire. Sounds easy enough, right? Unfortunately, the laws governing legal separation in Alabama are anything but simple.
Define "separation" As you probably already know, if you have a technical sort of mind, "separation" simply means to divide, to sever or to disconnect. Under a legal separation, then, all aspects of your life, from your income to your assets to your debts to your personal interactions, are divided with regard to your spouse. It also usually includes an order to one or both spouses to perform certain actions (like pay certain expenses) and to refrain from certain activities (like dating).
Many of the ongoing details of the illegal relationship are left to the discretion of the couple, but guidelines, restrictions and conditions can be placed by the judge – both in regard to who is responsible for what expenses and how the couple should interact as the separation progresses.
Just as most divorces are not actually contentious, most legal separations are not contentious – although they can be. Even in a harmonious legal separation, the arrangement is often overseen by the court and the court’s decisions are typically binding in nature, unlike an arrangement a couple might devise for themselves.
In general, a legal separation offers both parties a chance to explore how comfortable life would be without the other, so they can then make informed, rational decisions about how to move forward in each direction . Most legal separation terms involve elements such as the following:
Someone who is unsure about his or her desire for a divorce may benefit from legal separation, because it offers changes many of the benefits of divorces, such as the division of assets and liabilities, while preserving that state of legal marital union, as it existed previously.
It also offers the opportunity to try a trial separation for a set period of time, for up to a year, to see if any pre-existing issues can be reconciled during that period.
The court process of legal separation can last for a minimum of 30 days and as long as two years, depending on the complexity of the couple’s circumstances and whether it leads to a reconciliation.
This benefit of legal separation also offers a relatively quick way to dissociate from the obligations and ties of a relationship. With marriage, you not only have laws to deal with, but also the expectations of your family, friends and community — including potential employers. The process of a court-governed legal separation can also offer peace of mind, because you don’t have to deal with the societal issues associated with a divorce or dissolve your legal ties in the future if you don’t want to.
On the other hand, if a couple believes they can re-unite following the separation, the court’s restrictions may be an unnecessary hassle and aggravation.
Still, most couples separate for a reason — whether it’s domestic violence or infidelity or just mutual unhappiness in the relationship. If either party has experienced domestic abuse, for instance, is it really a good idea to give your abuser a chance to take advantage of you again?
For the most part, couples who attain legal separation are generally already aware of their need for divorce, but may be unwilling to go that route, due to religious reasons, economic reasons or a desire to retain certain benefits that fall away with divorce. Sometimes, legal separation also leaves children’s benefits, like child support and insurance, intact, since the parents are still legally linked.
The requirements for legal separation in Alabama are much the same as those a couple would undergo for divorce, and generally include the following:
Grounds for Legal Separation in Alabama
Legal separation in Alabama can be a complex process due to the confusing nature of state law. In order for a couple to pursue legal separation, several conditions must be met. The primary condition is that one spouse must show the other something has done or failed to do that has led to the unbearable circumstances. Otherwise, the court has no choice but to deny the separation.
Alabama law does not recognize physical separation as an official separation of a couple. A physical separation is simply the act of two spouses living apart as if they were separated, although circumstances have driven so many couples apart that the courts are more likely to dismiss their cases even without legal change of status.
It is necessary to separate prior to filing a divorce, and in many cases the separation does not last long. If a couple is physically separated for a period of time, this could provide leverage for one spouse in a divorce. Because of this, it’s common for one spouse to file for a legal separation for a year, and then pursue a divorce after that.
Couples must meet the state residency requirements before being permitted to file for legal separation. As of this writing, this requires couples to be residents of Alabama for at least six months prior to filing for a separation.
Spouses wishing to separate also must not have acted in bad faith to cause the other spouse into being entitled to the separation. Consequently, spouses should not make any claims with the intent of hurting the other spouse or the other spouse’s family in any manner.
In addition to the six-month residency rule, only certain grounds are recognized for legal separation in Alabama. The grounds include:
· One spouse being incarcerated
· One spouse being morally unfit, such as for reasons of adultery
· One spouse being permanently insane
· One spouse being habitually addicted to intoxicating liquors or drugs
· The consensual abandonment of one spouse by the other
· The consensual separation of the couple for at least one year due to irretrievable breakdown of the marriage
Divorce is not permitted for any situation that conflicts with religious practices under the First Amendment of the Constitution; therefore, legal separation in Alabama is often the only available option for couples.
A legal separation may be a long term legal commitment if both spouses agree to the separation. If the parties do not have children, the court can award them with terms described in an agreement jointly agreed upon with a temporary order. If the two spouses do have children, the courts have some power in determining how the children can continue to be raised in the separate households.
The judge needs to approve any agreement the couple can work out, although a judge has the right to modify parts of the agreement that might violate any laws of the state or public policy, deliver any spousal support considered necessary and distribute property owned jointly by the couple.
Legal Separation Process
Steps to File for Legal Separation in Alabama
The process for legal separation is very similar to a divorce. Most people in Alabama obtain a legal separation by filing paperwork with the local family court in the county where they or their spouse resides. Under Alabama law, you must have grounds for filing for legal separation. You can make this petition in the divorce complaint. To seek a legal separation, you need to file two forms in the probate court of your area. The first form is a complaint for divorce wherein you ask the court to issue a decree of separate maintenance. The second form is a child support guidelines worksheet detailing your monthly income, who cares for the child, what expenses you incur for the child, and the health insurance cost for the child.
From the time you have filed for legal separation, you need to abide by certain regulations detailed in Alabama statutes. First, you must consult a counselor in an attempt to reconcile and attempt to save the marriage. Counseling is a requirement under the law. Second, you need to prepare for counseling by making a list of all the assets, liabilities, and children of the marriage. You also need to think about what goals and objectives you want to achieve through the separation. Third, you must file a financial or custody reasons motion. This informs the other party of the purpose of the separation. Fourth, you must have a temporary hearing regarding the separation. Finally you need to attend a status conference with the court to review the progress of the counseling.
If the couple is unable to reconcile from the separation, then the couple can proceed with a legal divorce.
Impact of Legal Separation on Property and Finances
(1) Financial Considerations: Separation date impacts the allocation of a portion of asset values, spousal support, child support and contributions to retirement plans.
(2) Division of Property: Separate, essentially non-marital property or assets need not be divided by a trial court. Separate property is that acquired before marriage, after divorce, or obtained by gift or inheritance during the marriage by one spouse.
(a) "Marital Property" is property acquired by either or both parties during the period of the marriage. Examples include the family residence, vehicles, household goods and furnishings, and the like. An exception to the general rule of marital property is if one spouse used separate assets to buy property for both spouses. Then, the increase in value of the property which is attributable to the use of the marital property becomes marital assets and should be divided by the trial court. State law provides for an equitable division of marital property. One-half of the value of the separately purchased property is awarded to the non-purchasing spouse. If a marital estate is too complicated and involves an extensive inventory of items, it may need to be addressed by an expert.
(3) Debts: Most debts which are incurred during the marriage are marital debts. Some cases involve debt acquired by one spouse before the marriage for which both spouses would not be responsible. These categories of debt can be divided by agreement. Perhaps even more important is to agree that repayment of the debt is the sole responsibility of the spouse who acquired it.
(4) Treatment of Investment Accounts and Pensions: Investment Accounts and Employee benefits must be addressed for purposes of equitable division of assets. If the marital estate is of a size requiring a distribution of investment accounts and employee benefits, a pension valuation expert may be needed to assist with the division of these often complex financial tools.
Influence of Legal Separation on Child Custody and Support
In Alabama, legal separation does not inherently alter child custody and support arrangements. However, when couples who are legally separated are concerned about future events or are wishing to resolve existing disputes, addressing child custody and support can become a priority. It is common for those who initiate a legal separation to establish custody and child support arrangements in the separation agreement, and those arrangements become enforceable under the law.
If there is no formal separation agreement, it is possible to petition the court for a temporary order that establishes custody and child support while the parties remain separated. At this point, the judge will determine whether to award sole custody or joint custody to one party, and the outcome will depend on many factors, including mental and physical health, geographic distances , and personal preferences. Since legal separation does not affect divorce in any way, considering these factors and how the court views them is important. Judges take different approaches to health issues and preferences, and they tend to favor joint custody if at all possible.
Child support may also be determined as a part of child custody arrangements in many cases. Although it is usually based on income, one or both parents must submit an affidavit of child support, and the amount of support that is ordered depends on the number of children involved, how many overnight stays the noncustodial parent has in a given week or month, where the kids go to school and other factors. When a separation agreement exists specifically addressing child support, those amounts are likely to be upheld by the court; but where there is no agreement, or if the parties simply want to ensure that the amounts are upheld, parents may seek a court order.
Legal Separation vs. Divorce: Advantages and Disadvantages
Legal separation does not formally end the marriage, as divorce does. However, it offers couples an alternative while they decide what to do with their relationship. Your attorney can explain the legal separation process with its benefits and drawbacks.
Advantages of Legal Separation:
One key factor to keep in mind is that a legal separation helps you retain the "marriage" status and its corresponding benefits, but also accomplishes many of the same things that a divorce decree would. A judge can award you the following through a legal separation: Like a divorce decree, a separation agreement legally sorts out marital property and liability for debts. If domestic violence was a factor in the relationship and you want to leave the home, legal separation allows you to go to court and ask for protection from domestic violence to avoid seeing your spouse while the case is pending. If you receive protection, that order lasts for a year.
When Legal Separation Isn’t the Answer:
For some people, there are arguments against using legal separation rather than divorce. Because it does not end the marriage, you remain in the same legal situation, including the division of community property, child custody, and spousal support. If you own property with a spouse, even an ex-spouse, you will need that person’s signature if you decide to sell or refinance until the property is divided in a divorce settlement. If you have filed for divorce or a legal separation, it is probably too late to reconcile anyway. A divorce ends an existing marriage legally, while a legal separation is a waiting period to discover if you truly want to end the marriage. If you choose a legal separation, keep in mind that the need for child maintenance will continue until a divorce settlement is final. If you have reservations about the permanency of the situation, it may be best to avoid the legal separation process and continue living independently from each other, rather than engaging in legal negotiations.
Moving from Separation to Divorce
At times, a separation may lead to a reconciliation. For others, however, it leads to a divorce. If you and your spouse decide to terminate your marriage while legally separated, there are several steps that should be taken to ensure the process goes as smooth as possible. While divorce and legal separation are handled in much the same way, the process for converting a legal separation to a divorce is slightly different. In Alabama, either spouse can file a divorce action as soon as you have lived separate and apart without any cohabitation for at least one year . At this time, you must also have adhered to all laws, rules and court orders that were required under the separation agreement. Once you have officially filed for your divorce, you are automatically bound by the terms of your temporary order until a final divorce is obtained. Most divorce cases take about 10-12 months to finalize. A contested divorce, however, can take two to three years depending on the issues involved.