Alabama Legal Separation Agreement
Alabama grants a court decree of legal separation on grounds that include a complete incompatibility of temperament, so a couple can stay married while living apart and later seek a divorce. Attorney review available.
Find out where you stand in Alabama
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Introduction
Alabama lets a married couple get a court decree of legal separation, a court order that keeps them legally married while they live apart, on grounds as broad as a complete incompatibility of temperament or simply a desire to live separate and apart (Code of Alabama 30-2-40). A decree of legal separation is a court determination of the rights and responsibilities of a husband and wife arising out of the marriage, and by statute it does not terminate the marital status of the parties, so neither spouse may remarry. What sets Alabama apart is its grounds: a court shall enter the decree if the marriage is irretrievably broken, or there is a complete incompatibility of temperament, or one or both parties simply desire to live separate and apart (Code of Alabama 30-2-40(a)). Alabama first requires that the jurisdictional requirements for a dissolution be met, and the court must have addressed child custody and entered a child-support order before it enters the decree. A legal separation does not close off a divorce: a proceeding or judgment for legal separation shall not bar either party from later instituting an action for dissolution of the marriage (Code of Alabama 30-2-40(c)), which is how an Alabama separation converts to a divorce. Once the decree is entered, its terms can be modified or dissolved only by written consent of both parties and ratification by the court, or by court order on proof of a material change of circumstances. Couples choose it to keep a spouse on health insurance, to reach the ten-year mark for certain military and Social Security spousal benefits, for religious reasons, or as a trial step before deciding to divorce. Alabama divides marital property equitably rather than as community property, so those terms belong in an Alabama Marital Settlement Agreement rather than in the separation itself; if you decide to end the marriage, the pleading that starts it is an Alabama Divorce Petition. DocDraft builds your Alabama legal separation agreement from your facts, with attorney review available before you sign.
Key Things to Know
- 1
A decree of legal separation under Code of Alabama 30-2-40 keeps a couple legally married while they live apart, and Alabama grants it on unusually broad grounds that include a complete incompatibility of temperament; by statute the decree does not terminate the marital status of the parties, so neither spouse may remarry until a later divorce.
- 2
Alabama's grounds are broad: a court shall enter a decree of legal separation if the marriage is irretrievably broken, or there is a complete incompatibility of temperament, or one or both parties desire to live separate and apart (Code of Alabama 30-2-40(a)).
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Before it enters the decree, the Alabama court must find that the jurisdictional requirements for a dissolution of marriage are met and must have addressed child custody and entered a child-support order (Code of Alabama 30-2-40(a)).
- 4
An Alabama legal separation does not bar a later divorce. A proceeding or judgment for legal separation shall not prevent either party from later instituting an action for dissolution of the marriage (Code of Alabama 30-2-40(c)), which is how a separation converts to a divorce.
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The terms of an Alabama legal separation can be modified or dissolved only by written consent of both parties and ratification by the court, or by court order on proof of a material change of circumstances (Code of Alabama 30-2-40(c)).
- 6
If both parties consent in writing, earnings and accumulations, including retirement benefits, that each party receives after the decree of legal separation are that party's separate property and are not considered in a later divorce (Code of Alabama 30-2-40(f)).
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Couples choose an Alabama legal separation over divorce to keep a spouse on health insurance, to reach the ten-year mark for certain military and Social Security spousal benefits, for religious reasons, or as a trial step before deciding to divorce.
Key decisions before you file
Before you file a Legal Separation Agreement in Alabama, a few decisions shape the document: which option to choose and what each one means. The Legal Separation Agreement guide walks through them.
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Alabama Requirements for Legal Separation Agreement
Court Decree of Legal Separation
Alabama grants a court decree of legal separation (Code of Alabama 30-2-40). It is a court determination of the rights and responsibilities of the spouses, and by statute it does not terminate their marital status, so the couple stays married and neither may remarry until a later divorce.
Grounds for the Decree
A court shall enter the decree if the marriage is irretrievably broken, or there is a complete incompatibility of temperament, or one or both parties desire to live separate and apart (Code of Alabama 30-2-40(a)). No proof of fault is required.
Jurisdiction and Children Addressed First
Before it enters the decree, the court must find that the jurisdictional requirements for a dissolution of marriage are met and must have considered custody and entered a child-support order (Code of Alabama 30-2-40(a)). TODO(source): confirm Alabama's six-month divorce residency cite on primary .gov.
Does Not Bar a Later Divorce
A proceeding or judgment for legal separation shall not bar either party from later instituting an action for dissolution of the marriage (Code of Alabama 30-2-40(c)). The separation does not automatically become a divorce; a party must file the dissolution action.
Limited Modification of Terms
The terms of an Alabama legal separation can be modified or dissolved only by written consent of both parties and ratification by the court, or by court order on proof of a material change of circumstances (Code of Alabama 30-2-40(c)).
Post-Decree Earnings as Separate Property
If both parties consent in writing after the decree, each party's later earnings and accumulations, including retirement benefits, are that party's separate property and are not considered in a subsequent divorce (Code of Alabama 30-2-40(f)). Alabama otherwise divides marital property equitably; keep those terms in an Alabama marital settlement agreement.
Alimony and Property Only Carry Over by Agreement
Terms relating to alimony or a property settlement are incorporated into a later divorce decree only if the parties agree; otherwise the court may consider but is not bound by them (Code of Alabama 30-2-40(d)).
Reasons to Choose Separation Over Divorce
An Alabama legal separation keeps the marriage in place, which can preserve a spouse's health insurance, help reach the ten-year mark for certain military and Social Security benefits, or serve religious or trial-step reasons. Confirm insurance effects with the plan, since many treat a legal separation like a divorce.