Married couples in Alabama who do not wish to divorce but no longer wish to live together have the option of petitioning the court for a legal separation. While Alabama law does not require couples to undergo a separation period prior to divorcing, a judge may order a temporary separation before granting a divorce. A couple has the right to separate at any time, but living at separate locations does not constitute a legal separation. A legal separation is similar to a divorce in that a court order dictates the terms of property division, child custody and so on -- and you must abide by those terms.
Before an Alabama court will grant you and your spouse a legal separation, you must demonstrate one of the following to the court: Your marriage is either “irretrievably broken"; you or your spouse desire to live apart from one another; or you and your spouse are too incompatible to cohabit in the same home. You must also meet the state's six-month residency requirement before filing for legal separation.
Alabama's state code notes that you must meet the jurisdictional requirements for a “dissolution of marriage” before a court will grant you and your spouse a legal separation. Jurisdiction may be an issue if you or your spouse move to a different state immediately prior to filing for legal separation.
Modification of Terms
When the court grants your legal separation request, it issues a decree of separation. Similar to a divorce decree but without ending your marriage, the separation decree outlines the terms of your separation. This includes, but is not limited to, child custody arrangements, child and spousal support payments, allocation of assets, and debt payment obligations. The terms of a separation decree are legally binding. Should you or your spouse wish to later modify the terms of your separation decree, you can only do so if you both agree to the change in writing or if you prove to the court that a substantial change in your circumstances merits modification of the original decree.
After the court issues you a legal separation, you are free to obtain and convey property without your spouse's consent. If you and your spouse later divorce, the state of Alabama will consider any property you acquire after the legal separation but before the divorce as your own separate property. Your spouse has no claim on these assets during the divorce.
If you and your spouse reconcile after legally separating, the separation decree remains in effect. Dissolving the legal separation is a form of modification and requires that you and your spouse put your request to dissolve the arrangement in writing to the court. The court will then terminate the separation – permitting you and your spouse to return to married life.
References & Resources
- Bowman Law Firm: Divorce in Alabama (p.3)
- Fort Rucker Preventative Law Program Legal Assistance Series: Divorce (p.8)
- Alabama Legislative Information System Online: Code of Alabama 30-2-40 – Legal Separation
- Ohio Family Law Blog: Jurisdiction – A Case Study on Minimum Contacts
- The Malbrough Firm LLC: Legal Separation and Separation Agreements in Alabama
- American Bar Association: Separation, Annulment and Divorce