What is the Difference Between Legal Separation and Getting a Divorce

In Alabama, two spouses who get legally separated are still considered to be legally married. The earnings, including retirement benefits, or accumulations of assets of either spouse that they receive after the decree of legal separation are the party’s separate property. The court will not consider these earnings in a later divorce action. A spouse who is legally separated may convey their real estate without the signature or consent of the other spouse.

Each spouse may waive inheritance rights from the other spouse after a legal separation. The court may assess court costs for a legal separation as if the parties requested a divorce in Elmore County or anywhere else in Alabama. The court may tax such costs accordingly. 

In order to get legally separated, the spouses must obtain an order from the court. At least one of the spouses must have lived in Alabama for a minimum of six months. One party, who becomes the plaintiff, is required to file a request. It is proper to follow the rules for filing for divorce when considering where to file the request. 

The plaintiff may file the request in the circuit court of the county in which the defendant resides or in the circuit court of the county where the parties resided when the separation occurred. If the defendant is a nonresident, the plaintiff may file in the circuit court of the county in which the other defendant resides. 

A request for legal separation must state that the marriage is irretrievably broken and any grounds for the breakdown, such as adultery. The request must also provide that at least one of the spouses wants to live apart from the other. If the spouses have minor children, they must explain to the court what determination they prefer in terms of custody, visitation, and support. 

Spouses who are legally separated may live in different residences, spend money as they want, and enter into new romantic relationships. If a spouse wants to remarry, they must ask the court to convert the separation into an uncontested divorce in Lawrence County. Otherwise the marriage to their separated spouse will not be terminated.

The court may change the terms of a legal separation with the written consent of both spouses. The court may also change the terms of a legal separation after a spouse has presented evidence of a material change in circumstances. An order for legal separation does not prohibit either spouse from later filing a divorce complaint.

The court may order that the terms of the legal separation regarding alimony or division of property be incorporated into a final divorce decree if both spouses agree to the terms. Otherwise, the court may simply consider the terms of the legal separation for the divorce. The court will not be bound by these terms when ruling on a future divorce in Lauderdale County. 

If either spouse in a legal separation files for divorce later, the best interest of the child standard applies to the court’s determination of child custody and visitation. The best interests of the child may include the child’s opinion. Alabama does not have a set age after which the opinion of the child may be considered. 

Spouses who want to get legally separated may form a legal separation agreement. Such an agreement usually covers:

• The division of assets
• The division of debts
• Child custody, visitation, and support
• Alimony (spousal support) 

Spouses must engage in a full disclosure of assets and debts to draft a working legal separation agreement. The spouses should submit their legal separation agreement to the court when requesting the separation. 

Spouses who want an uncontested divorce in Marshall County can draft a similar agreement that they also submit to the court. This is called a marital settlement agreement (MSA). Spouses must also engage in a full disclosure of assets and debts to to create a MSA. After the court issues a ruling in a divorce, 60 days must pass before either party can get remarried. The exception to this rule is that the parties may get married again to one another. 

 

	Legal Separation	Divorce
Legal Status	The spouses remain legally married after a legal separation.	The parties are not legally married after a divorce.
Assets and Debts	The earnings and assets accumulated by either spouse are considered separate property after a legal separation.	The earnings and assets accumulated by either party are considered separate property.
Remarriage	A spouse cannot remarry.	A party can remarry after a 60-day waiting period, except the parties may get remarried sooner if they marry one another.
Agreement	Spouses must make a full disclosure of assets and debts and form a legal separation agreement. Otherwise the court may rule on the division of property.	Spouses must make a full disclosure of assets and debts and form a marital settlement agreement. Otherwise the court may rule on the division of property.
Custody	Spouses must share their plan regarding custody, visitation, and support of minor children.	Spouses must share their plan regarding custody, visitation, and support of minor children.

 

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