Legal Separation as an Alternative to Divorce in Alabama

One of the questions I get often from people contemplating divorce is whether they should consider a legal separation as an alternative. Here are some thoughts about it.

First, there’s a good reason NOT to do a legal separation in Alabama. Because legal separation is unusual and requires special handling, it tends to cost more than an uncontested divorce. For example, I charge $100 more for an uncontested legal separation than I charge for an uncontested divorce. Anecdotally, I would guess that something like 75% of those who use me to prepare an uncontested legal separation return later to do an uncontested divorce (meaning they paid me twice). So if the choice is between an uncontested divorce and an uncontested legal separation, you clearly would pay less with an uncontested divorce.

There’s also a non-financial reason to avoid legal separation. Legal separation leaves spouses in an uncertain Neverland where they’re sort of married, sort of single. Can they date? Can they have sex? What happens if they live with someone? Legally, the answers to these questions are clear, but culturally, they could hardly be more murky. Imagine the conversation between a legally separated person and a possible romantic partner. “So you’re divorced?” “Well, no, not exactly . . . ”

So why would anyone ever choose legal separation over divorce? I think there are four main reasons:

1. Many employers who stop providing medical insurance to a divorced spouse of an employee will continue covering a legally separated spouse. For some of us, that may be reason enough right there. If continuation of health insurance is critical for the nonworking spouse, and if it’s difficult or burdensome to purchase it elsewhere, a legal separation may be the best solution.

2. Some of us still live and work in peer groups where divorce is so shameful, so embarrassing, that we must avoid it at all costs. Some pastors fall into this category, but there are other professionals as well. I remember well the successful attorney who wanted to avoid divorce because the lawyer who led his firm was so disapproving of divorce. If either spouse struggles with this, legal separation may make sense as an alternative to divorce.

3. Legal separation is reversible. Divorce can be reversed by remarrying, but it’s not the same, and we all know it. If either spouse is hopeful that the marriage can be saved, legal separation may be a nice alternative.

4. This is sort of a corollary to #3. If you’re the spouse who wants a divorce, and if you and your spouse are in danger of going to war over a divorce, it’s possible that your spouse would agree to a legal separation. If so, you may find that the legal separation is appealing as an alternative. Yes, you will pay more for an uncontested legal separation than for an uncontested divorce, and yes, you expect that it will be simply a matter of time before you’re back to do an uncontested divorce, but the cost of both transactions is still FAR less than you would pay for an adversarial divorce, and it might offer your spouse a gentler grieving process as well.

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62 thoughts on “Legal Separation as an Alternative to Divorce in Alabama”

  1. You need to file a motion to dismiss the legal separation on the grounds that you and your spouse have reconciled. It’s not complicated, and any judge I know would be glad to do it, but it’s not enough just to start living together again.

  2. You don’t need any documents for the state. If you say you’re divorced, the clerk will believe you and issue a marriage license. I’ll let you and your spouse-to-be work out what proof you need to share with each other.

  3. does a legal separation provide both parents with child custody. Also, is their a waiting period to file for divorce if you have a legal separation.

  4. Typically, you would specify the plan for custody in the legal separation just as you would for a divorce. So it could be joint custody or sole custody for one of the parents. There is no required waiting period after the legal separation is granted to file for divorce. The only constraint is financial (most of us aren’t excited about paying the lawyer and the court twice in quick succession).

  5. My wife and I have been separated for a year. We have one child together (18 months) and she does not work. She expects me to pay for everything including anything regarding her daughter and her extraciricular activities. What can I do legally until I have the money to pay for a divorce? By the way…I know that the divorce will be expensive because everything with her is contested…

    Thanks,

    Rich

  6. Contact DHR and set up child support. Then that will be the extent of the support you provide to Mom. If she wants support beyond that, she can file for divorce.

  7. My husband and I are legally separated. What I want to know is in the state of ALabama, if we are separated for 2 years, can he still contest the divorce and keep me from getting a uncontested divorce.

  8. I got married over 10 years ago. we stayed together for a month. then we have been seperated for over the past 10 years. we married in south carolina. And i have moved to ohio since. as far as i know he still lives in south carolina and im in unable to locate him. is there any such law that we would be divorced because we have been seperated for over 10 years. also is publication my only choice? Thank you.

  9. If you don’t know where your spouse is and can’t find him, publication is the only way I know that you can initiate a divorce from him. And no, divorce doesn’t happen until you make it happen.

  10. Do I have to have a legal separation to file for child support and partial custody/visitation. How do I file for child support and partial custody/visitation?

  11. My husband and I married in 1991, divorced in ’98.Remarried again in ’99. He wants a divorce and has been moved out for eight months now. I have refused to sign. Is there anyway in the state of Alabama for me to win a case against divorce? We have a 16 year old. I’m a Christian and don’t want a divorce. I feel that God would not have me to sign and if it’s giving him what he wants over what God wants then I must obey God. Any suggestions?

  12. I’m not going to argue with God; I’ll lose every time. Just know that legally, he can get a divorce even over your objection, no matter what God tells you.

  13. A couple is legally separated and he designates someone outside of the marriage as beneficiary to his life term insurance policy (thru government employement). Does the wife have a claim to any part of his life insurance money should he die during their legal separation?

  14. I know in some states you can be legally separated but still live together. Is that possible in Alabama?

  15. If you mean under the same roof, the answer is yes. If you mean living together in the full sense, complete with conjugal relations, the answer is no.

  16. If the wife has filed for divorce, has vacated the marital home and is receiving court negotiated monthly support, can the husband start dating? I’m getting conflicting advice from my counselor and two attorneys. Thanks

    1. I’m a woman. I filed for divorce in 98 because of abuse and his affair. But I had no proof of affair. After I filed I met a man and started dating. My husband video taped us out together and got me for adultery and got full custody of our son. I was devastated and had mental breakdown. This is in Etowah Co Alabama. I have to pay support. I am a good mom. I do not advise dating at all. It ruined my life.

    2. Afraid to leave emotionally abusive controlling husband. I’m codependent and have no income. We have teenage son. He didn’t want me to work around men so I stayed home. He’s cheated our whole marriage of 17 years but a few years ago I left and did same thing because I was hurt and looking for way out but guilt brought me back. Now he’s got me where he wants me. He took me off checking acct which he always kept negative anyway so I would not get a dollar and also took me off life insurance. Everyday he talks down to our son and has crushed his spirit. I’ve tried working in last year since I have no access to money but I’m so emotionally unstable crying and nervous that it’s hard to keep a job. I have no family to help me. His family has money. Our home will be paid for in 2 years. He tells me he hates me and wants a divorce and for me to leave but I literally have no where to go. So we tolerate and walk on eggshells . I can’t leave my son. I’m his only voice. He doesn’t beat me but gets in my face and screams and threatens and says horrible things about me. Because of a horrible first marriage and divorce years ago that my first hubby got custody I’m frozen afraid to leave. What should I do?

      1. I recommend you get to a shelter for abused women as soon as you can. Trust me, they get this and will help you fashion a survival plan in light of the environment, the needs of your son, and your own health and safety.

        If you don’t know how to find a shelter, start here: https://www.domesticshelters.org/. Even if you don’t have a shelter in your town, call the shelter that’s near you. Sometimes it can make all the difference just to talk to someone who understands what you’re going through.

  17. Let me get this straight: You’ve gotten advice from two different attorneys and a counselor, all of whom you’ve paid by the hour, and you want to settle it by consulting a free message board? Surely you jest . . .

    I won’t try to give you advice, but I will refer you to the page I wrote about dating a while ago. Hope it’s helpful. http://www.divorceinfo.com/dating.htm

  18. My husband walked out on me after 1 and 1/2 year of marriage. My second, his third marriage. He told me to quit my teaching job and the week after school started he left. I was without a job for a year. I just now have been hired and I used my inheritance to live off of last year. With him asking me to quit and me doing so do I have any recourse on getting my 30,000 dollars income I had when I came into the marriage?

  19. Sure, there’s always a chance. It will probably come down to a clash of narratives, yours that you were happily working and supporting yourself until your husband made you quit and then unceremoniously abandoned you, and his that you are a lazy gold digger who thought she could bleed her new husband dry and still hasn’t given up. I can’t predict which narrative will prevail; maybe you and your attorney could play both of them to see how you and the attorney think they are likely to develop.

  20. I have a marital separation agreement from 1997. We lived separately but continued to have conjugal relations, go on trips together and make plans to move back in together. I moved in in 2004 for about 3 months then moved back out. We again continued to have conjugal relations, take trips and make plans to reconcile and live together. Last week he asked for a divorce. I just looked at the separation agreement and the statute of limitations was up in 2007. What exactly does that mean?

  21. To me, it means that you and your husband have generated a divorce lawyer’s dream: lots of conflicting facts and the potential to bleed both of you dry with a messy divorce and big attorneys’ fees. If there’s any way possible, you and he need to sit down together at the kitchen table and work this out so you don’t end up with a protracted adversarial divorce.

  22. I was legally separated from my husband of 64 years. We still saw each other, had lunch, went to family functions together. The separation was because he loved to travel and my health went down and I could not travel. The housing complex I wanted to live in said that I must have a small amount of assets. Thus, the separation papers came about. He passed away. My daughter produced a “will” loosely signed by him 6 days before he died of bone cancer at the age of 92, leaving everything to her and her boyfriend. There are a substantial amount of assets (enough for both of us). I am 86 and did not have the money nor probably a long enough lifespan to contest the “will” so I went for an elected share. The opposing attorney is saying assets specifically listed in the separation papers are still enforce at the time of death. My attorney is saying the separation papers ended when he died and therefore I am entitled to an elected share under AL law. Do you know of any case law that supports the later? Thanking you in advance. LB

  23. My husband & I have been married 25 yrs. with no children. We are both disabled. Our home was willed to me and 3 other siblings when my father died last October. I want a legal separation. I want him to leave but he will not leave by free will. Do I have to have an attorney to file for a legal separation? I do not have the money. If I need a lawyer, who can I contact to handle it because I am low income?

  24. I have several thoughts about your questions. First, you’re welcome to file for legal separation, but you should know it’s likely to end up as a divorce before you and your husband are finished. Second, the sooner after you receive the home you file for separation or divorce, the more likely most judges would be to treat it as your home. And conversely, the LONGER you wait to do this, the more likely most judges would be to treat it as a marital asset and assign some benefit to your husband before giving the house to you.

    Third, to find a lawyer to help you, start with your local bar association. Many but not all of them have a formal or informal system of assigning cases of indigent (poor) litigants to a panel of attorneys who take responsibility for them. And it’s possible that what you most need is pendente lite relief, and once you have that, the pressure may be off.

  25. No, LB, the only suggestion I would have is that you should trust your attorney to know the law on this and defer to his or her advice. I apologize for not responding.

  26. My husband of 23 years and I are separated one week; I am not hopeful that we will reconcile. He came to me yesterday and said that regardless of what happens with us that when his aging parents pass and he receives is inheritance that he will split it with me because I deserve to share in it (lots of guilt built in here). He damaged the relationship and even though I am not named as an heir, he knows they would expect us to enjoy it; They treat me as a daughter and are unaware of our marital issue. Should I try and proceed with a legal separation and get this in writing? Is this reversible should we divorce down the road? I fear he’ll hook up with some one fast and she will try to talk him out of it.

  27. Within a legal separation agreement, can you also incorporate a binding dissolution of marital property agreement that will take effect at the time of separation filing and also continue to apply if a divorce is sought and finalized, ie. wife gives up her right to husband’s retirement plan, they set an amount of one year spousal support, agree on community property disbursement, etc. The purpose of getting a legal separation instead of a divorce is for the purpose of continuing insurance for 6 months for a child not of the marriage. However, at the end of the separation, when they seek a divorce, can the wife then decide “to change her mind” and not relinquish her right to his retirement, etc. that was agreed upon at the time of filing for legal separation? Or is it possible and if so, what must you do to ensure the terms of the separation (desired divorce terms) are final and unchanging (as per retirement waiving,etc.)when separation period is up and divorce is sought? So at the end of the legal separation time period, can the final divorce decree be MADE to honor the property agreement of the legal separation?

  28. In the terms of a 6 month legal separation, the husband grants wife spousal support for a year and wife waives her right to his retirement. Is it correct that the spousal support paid during the 6 months legal separation period goes toward the total 12 months that the husband is to pay? Or does the 12 month period of payment not officially start until divorce is granted? Secondly, upon the filing of legal separation and spouse waiving retirement, etc. is the divorce date and dissolution of marriage for timing purposes said to retro date back to the date of filing of legal separation once divorce is finalized? I am also thinking in terms of the 10 year marriage requirement to seek spouse’s social security amount, full half share of military retirment, etc.

  29. My husband and I legally separated in 12/06 but are going to resume living together at the end of this month. After our separation, my husband accumulated a monstrous amount of debt, due to a drug addiction problem. The debt is close to $100,000. Our separation agreement stipulates that I am not responsible for any debt that was incurred after the date of separation. I myself have practically no debt except for my mortgage. Even my car is paid for. We don’t have any joint debt, either. My husband is planning to file bankruptsy because the debt in his name is just too overwhelming. If he does this, can I be held responsible if we are living together again? Will they be able to come after my assets? Or would I be free from liability because the debt was incurred during the time of separation?

  30. It’s possible to live with this man without becoming liable for his debts, but you and he would need to be scrupulous about observing and enforcing your financial separateness. You do not necessarily become liable for his debts or a party to his bankruptcy simply by living together again.

  31. If you are married for 6 years and get an Alabama divorce, can you get any of your spouse’s military retirement?

  32. When must you begin paying spousal support and child support–does it start on the filing date of legal separation, the date the kids and wife are actually out of the house, the date the judge signs the papers,etc. ? And can you agree to alter the day the payments are to begin if you both agree? For ex, if the law is that it starts on the day of the filing, can you agree that payments startat another given date (allowing you to get on your financial feet)?

  33. If both parties agree, they can set whatever date they want for alimony to start. As long as the judge is satisfied the children are properly cared for, they can set whatever date they like for child support, too, although some judges insist that child support be due on the first of a month.

    If the parties are unable to agree, the judge will typically order that spousal support and child support commence immediately.

  34. I have been married 30 yrs and left as of April.My husband developed mental problems and emotional problems that made it impossible for me to live with him. He is still able to work(machine operator) he cannot deal with people.Our youngest child is 17,a daughter and is with me. I do not know whether to file for a divorce or separation. I do not want the mental issues to be the stated cause of the divorce to save the kids and family. I do not want the house. However I used 41,000.00 of money that came from selllig land that my mom left to both of us to pay off the house he is in.Just 2 yrs ago. He has let the thing fall apart so I don’t want it but wondered what should I do. I consulted 2 lawyers got 2 different suggestions. He is going to fight giving me a dime,he says I am not at home “earning” it so he owes me nothing. I am in a mess and don’t know what to do. If I get too aggressive with it he may up and disappear and if I don’t he will try to get out of giving me anything. I am currently living with my 78 yr father in another state. Just so confusing.

  35. You’ve already paid money to two lawyers. If I were you, I would confront each with the other’s conclusion and ask them to help you understand the inconsistency. You may find their different answers to be simply a different understanding of the facts. It happens.

  36. A military service man and non-military spouse have just made it beyond 10 years of marriage in AL before she files for divorce. She now wants half his retirment accrued during the marriage. What are the factors the judge considers before awarding or not awarding the non-military spouse? When making the determination, would he or she consider that the now leaving spouse also left 8 months ago and had separation paperwork typed up BUT NEVER FILED that waived her right to military retirement in lieu of spousal support for certain amount of time. She left the home, husband, and kids for over 30 days and then came back to husband. Now, a month after the 10 year mark, is again pursing divorce and now wants the retirement. Is any of this persuasive at all or a non isuue because of the lack of filing 8 months ago. She has also been in charge of the finances for years and has the account in the red every month with numerous nsf fees (stupid husband). Is any of this a consideration to NOT award her the retirement or is it more cut and dried?

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