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. If u r in the middle of a divorce or are divorced in alabama and your exspouse lets someone move in with them while they are not married do you have to allow visitation?

  2. Yes, until you have an order from the judge saying you don’t. Most judges will agree to insert a provision prohibiting unmarried romantic partners spending the night where the children are residing or visiting, but even that wouldn’t necessarily give the CP the right to withhold visitation.

  3. Hi. I couldn’t find a thread for NY, sorry for posting in this one.

    I am seriously considering a divorce to a husband who has admitted to cheating and who has been aggressive to me in few times in the recent past. He has a lover, and it has come to the point that we can’t make ends meet because he is spending so much money in restaurants with her, etc. My worry is that I do not make as much as he does so I do not know if there are any ways to pay for the attorney?

    Also, we have two children. One is 12 and the other one is in college and older than 18. Both are closer to me than him – he barely spends any time at home. I am worried about them and wanted to know how child support works? If I were to get custody, would I be able to get child support for both or just the minor? My issue is that since I am not making much above 15k a year (he is the “breadwinner”), the eldest could be in danger of not continuing college because of the tuition costs and that.

    We have been together for longer than 20 years and got married at around the time we had our second child. We owned a home and we are still paying for them. That is another worry of mine, that he abandons us and not being able to sustain myself and my children. How would the family house be allocated and how would the assets be divided? Would there be any chance for alimony payments (again, due to my low salary) or is that out of the picture?

    Thank in advance,

    Martha W

    1. Good questions, all. Unfortunately, you’re asking them of a guy who doesn’t know the facts of your case, the proclivities of your judge, or even the applicable law in your state. For what it’s worth (and it’s really not worth much), in most states the judge would look for some way to divide the marital assets and debts of your marriage in an equitable way, and alimony would be not just possible but likely.

  4. My wife left me when we’re about two months pregnant.My daughter is almost three months old. Neither one of us filed for a seperation or divorce and she is now dating another man. Is that grounds for Adultery. She also has no job and no car(I have both) and I found out when they came together to pick up diapers and some money I had for her with my daughter and two step daughters in the car with him. She admitted they were dating when I asked her. What are my chance for full custody?

    1. I assume you and Mom are in Alabama. It sounds like you’ll have an easy time showing that your wife has committed adultery, but I’m not sure that’s the key question. The question you’ve asked is whether you would be able to win custody of your daughter in an adversarial divorce with your wife.

      When it comes to that, the judge is not going to be nearly so concerned about who’s been naughty and who’s been nice as about what would be in the child’s best interest. I gather that your daughter is living with Mom and visiting with you; that will make it easier for the judge to decide to make that arrangement permanent and award custody to your wife.

      The best way I know to get started would be to print the Alabama custody factors – http://divorceinfo.com/alcustodyfactors.htm – and make a separate page for each one. Then write down what you would say and what your wife would say about each factor. This process won’t require you to pay any money to anybody. When you finish, if you’ve been truly honest with yourself, you’ll have a good idea how the judge would look at custody.

      And if you do end up in that custody fight, your custody factors will make a great starting point for your lawyer’s preparation of your case.

      1. She hasn’t let her stay at my house I have only got to see my daughter here and there and just for a few hours each time.

        While we together her ex who she has two kids with was in prison and I found letters making threats towards me and saying things that made me think she planning on leaving me when he got out and when I confronted her she got defensive and refused to talk to me about it. She left a week before he got out. He is not the other man and he admitted to me that they tried when he got out but it didn’t work out. Another thing is that she my daughter, two step daughters, her mother and father live in a two bedroom trailer on a property covered in debris. I am living with my mom right now in a 4 bedroom house.

        One day I was frustrated becuse she gives me very little say about raising our daughtersnd I feel like I am being alienated. I said anything that involves my daughter is my business no matter whose house she is in and she said “no that is not how this works”

        She also mentoined child support when there is nothing in writing I give her what I can when I can. She doesn’t go after her other kids dad for not paying. When I mentioned that she said “He doesn’t have a job.”

        I ask her all the time if she needs anything the answer always no. But the other day when she said she is gonna need more money for stuff the baby needs and I told her I have asked you if you need something for her to let know and I can bring it she says I shouldn’t have to ask.. how I am suppose to know if I only get to see her a few hours a week.

      2. None of this changes my primary recommendation, that you work through the custody factors. Don’t try to focus on any one; cover them all.

        And no that “I pay her what I can when I can” is a long way from court-ordered guideline child support.

  5. My husband and I have filed for a divorce after 9 years of marriage. We are fighting over who gets took keep our house.We have not gone to court yet but he’s saying his attorney told him he can go date and sleep with other women. I told him it’s adultery cause we are still married. I guess he thinks I’m dumb cause he keeps saying it doesn’t matter what he does now. He has been physical, mental and emotional abusive to me and now have texts that he sent to someone stating he has had sexual encounters twice.

    First question, with him commuting adultery, do I stand a better chance at keeping the house and second, can I sue him for all the abuse?

    I am 100% disabled. If that has any effect. Third, would he be liable to pay me alimony?

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