What Is Legal Separation
A married couple who is unsure of their future and contemplating divorce can take some time apart with by separating legally. This provides them with space to evaluate their relationship and take a call if they want to go ahead with terminating their marriage. The process for this is different in every state and some states which do not recognize legal separation.
Alabama recognizes legal separation. A married couple may choose to legally separate instead of opting for divorce for several reasons, such as religion, health insurance, or complications with property and assets between the couple. Even custody of children and visitation is detailed out in the separation agreement. A legal separation allows the spouses to remain married, but sever most marital ties. The spouses should want to live separately and meet the basic residency requirement of the state.
Legal Separation in Alabama
A couple can take time apart while protecting their rights with the help of legal separation. Alabama recognizes legal separation on one of two no-fault grounds. Either of the spouses can contest for an irretrievable breakdown of marriage, with attempts of reconciliation being futile and not in their best interest or they can contest an incompatible temperament which has resulted in them wanting to live separately. Little to no evidence is required for the court to accept the claims.
A legal separation is formalized through a document called the separation agreement, that is recognized by the state as a legal, binding contract. The terms of the agreement can also be changed if both spouses agree on them and material evidence is provided to the court to prove the change in circumstances. The agreement negotiated by both spouses chalks out enforceable terms for custody, spousal support, child custody and visitation, and even division of property is enforceable by law after it is signed. If the couples choose to get a divorce, the agreement can be merged into a divorce decree.
Legal Separation vs Divorce
In Alabama, signing for divorce legally ends a marriage. After a divorce, each spouse is free to go their own way, and they are also allowed to remarry. This is where a legal separation differs from a divorce as while spouses can be independent of each other and lead their lives independently, they are not allowed to get married again, as legally their marriage has not dissolved. However, they can be in relationships with other people while they are legally separated from their spouse.
If the spouses reconcile after the legal separation, the separation decree still stays in effect. The dissolution of the separation agreement will require the spouses to put it in writing before the court, which will then terminate the separation and the couple can resume married life. A legal separation can also become an accepted grounds to file for divorce after two years. In a divorce, Alabama imposes a 30-day cooling-off period from the day the divorce is filed. The time is given so that if the spouses are to change their mind and go back on the divorce, then there is time to do that and pull the plug on proceedings.
A divorce can be of two types — uncontested or contested. In an uncontested divorce, both spouses agree on the division of assets, alimony, child custody and visitation. It is the most common type of divorce. A contested divorce can take one year or more in Alabama. Usually, a trial date is assigned by the court for the case which is several months away, as soon as the spouse files a response to the complaint. Alabama law requires both parties to engage in mediation before the matter can go to trial.
Why Choose Legal Separation
When contemplating between going for a divorce or legal separation in Alabama, there are several factors which favor opting for the latter which include:
- If your spouse and/or you are uncertain to get a divorce for legal or moral reasons.
- One spouse will become eligible for Social Security or any other governmental benefits of their partner if they continue to stay married.
- One spouse is eligible for their partner’s insurance or health benefits if they do not get divorced.
- If the couple chooses to stay married, they can avail tax benefits. However, a minimum time period can be there for which marriage has to last before the benefit can be availed.
- You and/or your spouse think there might be a prospect of reconciliation after a cooling-off phase that a legal separation grants.
- You and/or your spouse find it easier to negotiate the separation agreement as opposed to the divorce agreement.
- Your state’s residency requirements render you ineligible for a divorce in your state, but you want to opt for a court-sanctioned separation until you can file for divorce.
Grounds for Legal Separation
In Alabama, you can be granted legal separation on the following grounds:
- If either party was physically and incurably incapacitated from entering into the marriage state at the time of marriage.
- If a spouse engages in adultery.
- If a spouse voluntarily abandons the other at least one year prior to filing for separation.
- If a spouse is imprisoned for at least two years in any state, with a minimum seven-year sentence.
- If a spouse commits a crime against nature, with a man or beast, be it before or during the marriage.
- If a spouse becomes addicted to alcohol or drugs like opium or morphine after marriage.
- If the spouses are temperamentally incompatible which doesn’t allow them to live together, as determined by a court.
- If a spouse is confined after marriage in a mental hospital for at least five successive years if that party is incurably insane at the time of filing for separation (a certificate from the hospital is required stating this).
- Irretrievable breakdown of the marriage.
- If the wife is pregnant at the time of marriage without knowledge of the husband.
- If one spouse has committed violence against the other or when their conduct has caused fear of violence.
- If the wife has stayed away from the husband’s home for at least two years without his support and she has been residing in Alabama for those two years.
Residency Requirements for Legal Separation
If you consider separating legally in Alabama, you need to meet a few basic residency requirements. Before the court grants you and your spouse a legal separation, you or your spouse must have lived in the state for at least six months. For a divorce, an additional 30-day waiting period is required.
The Process of Separate Support in Alabama
These are the steps to file and obtain a legal separation in Alabama.
Step 1: Filing for Separate Support
- Either of the spouses must have lived in Alabama for at least six months before filing for separation.
- A Complaint for Separation is filed in the circuit court of the county in which either of the spouses resides or in the county where separation occurred.
- Identify yourself, your spouse and the reasons for separation.
- List out the relief you are seeking in terms of monetary compensation and with regards to children.
- To get child support and chalking out visitation rights, fill out the CS-42 form along with the Child Support Table.
- An original and two copies of the Complaint need to be stamped by the court clerk.
Step 2: Issuing Summons to Your Partner
- Summons will be issued to your partner by the court after the separation agreement is filed by one party.
- The summons identifies the rights of the spouse and sets forth the lawsuit’s notice.
- The summons needs to be answered within 30 days of being issued.
- The summons needs to be signed in front of a witness stating the serving and acceptance of summons.
- Take an Acknowledgement of Service form, which will have to be completed and attach the written delivery acceptance of summons, and its file with the court.
- A sheriff or constable can be hired to serve the summons. They will notify the court after serving the spouse.
- If the spouse does not accept service, request the court clerk whether summons can be sent to their address via certified mail.
Step 3: Court Hearing and Decisions
- Both spouses are required to attend court hearings before the legal separation granted.
- The judge will ask both spouses a few simple questions and then enter an order of separation.
- If the spouses can’t reach an agreement, the court conducts a hearing and enters an order.
- It takes at least 30 days for the court to deliver its decision.
- The terms of a separation agreement become enforceable by Alabama courts.
The Cost of Getting Legal Separation
The couple signs a separation agreement which lists out the terms of division of assets, and other matters related to finances, child custody and visitation. The couple can draft it together or as it is a complicated document, they can get an attorney to draft it. A filing fee of $324 is required to be paid to the county clerk in domestic relations cases. You will need to check the method of payment at the local court, whether they accept cash or require a payment to be made through money order or a cashier’s check.
Find out your judicial district and court from this map.
We hope this guide has helped you in understanding better the requirements and processes related to getting separate support in Alabama, and how it is different from getting a divorce.
A legal researcher by trade, Steffan serves as the Editor for all of eDivorce’s helpful guides and blog posts. He loves writing about the legal process in an effort to help reduce the complexities of the legal system. Learning from his own personal divorce, he enjoys sharing what has helped him, what didn’t, and how to move on with your life.