Legal Separation – How is it different than Divorce?
Some states have a waiting period before divorce, a length of time people must be separated before filing. This is different from a “legal separation.” In Alabama, there is no such “separation” waiting period. There is, however, a legal status of “separated.” Married people can enter into legal separation agreements to protect their legal rights. The Alabama Code uses the following definition: “A legal separation is a court determination of the rights and responsibilities of a husband and wife arising out of the marital relationship. A decree of legal separation does not terminate the marital status of the parties.” Alabama Code Section 30-2-40.
It is always a good idea to get something in writing regarding the parties’ legal rights and obligations. Once the agreement is signed by both parties, it is filed in Domestic Relations Court, approved by a judge, and becomes a court order. The process is similar to that of filing an uncontested divorce. Your spouse can promise to pay you child support or keep paying the bills during your separation and then suddenly decide to stop. If you do not have a court order listing your rights, there is no way you can enforce them.
It is incredibly important to have an attorney draft legal documents that can fully protect you during this time. Once your legal separation agreement becomes a court order, it may be enforced by a court if someone breaks their side of it. This type of enforcement action is similar to a divorce contempt action.
Is Legal Separation right for me?
Husbands and wives enter into legal separation because:
- They want to wait on divorce because there is a chance they will get back together.
- They do not want to get divorced for religious, social, or other personal reasons.
- They want to have child support “in writing.”
- They want to have child support payments taken directly out of someone’s paycheck.
- They want to have in writing that someone will continue to pay marital bills, including mortgage notes.
People can enter into a legal separation agreement that covers just about everything that a divorce agreement would cover. Each party might get benefits or responsibilities. Alabama legal separation agreements can contain provisions on child custody, child support, temporary use of the home, temporary obligations of bills/debts, temporary alimony, which person will pay insurance, and anything else one can imagine. These legal separation agreements between the parties are filed in court and become an enforceable court order. The parties can dissolve the legal separation at any time and go back to their regular marital status. Either party can also file for divorce at any time during a legal separation.
A legal separation is not right for everyone; it may be better for you to not be legally separated, or it may be better to seek a divorce. Whether a legal separation agreement is right for you will depend on a variety of facts. You should speak with a knowledgeable and experienced attorney at our firm for more information.