Overview of Alabama Separation Laws
In order to understand how we fit our law into this in the context of all other laws, I want to give you some background about Alabama separation laws. In Alabama, a separation is an informal means by which parties to a marriage live apart without terminating their marital status. For example, you may be married but have moved out of the marital residence. You still have to deal with the implications of having two households, however.
The purpose of a separation may be to provide spouses with an opportunity for reconciliation or to figure out third-party issues, such as work relocation, whether to divorce, religious reasons, or any number of reasons. A separation provides spouses with a period of time to decide on whether divorce is the best option for both spouses. This can take as long as both spouses require and/or agree.
It is important to note that if a spouse does not want to be separated, courts lack the power to divide the property until the parties obtain a divorce.
If spouses agree on temporary issues such as money, assets, and child care, these agreements can be reduced to writing in a formal separation agreement (although it may not be called this, it acts as a legally binding, enforceable contract). There is no such thing as a legal separation in Alabama. A couple who wishes to be separated but not yet divorced should enter into a written separation agreement that details the terms of their separation. The terms of this agreement are legally binding on both spouses and once the couples reach an agreement on a divorce , the agreement can be incorporated into the final decree when the divorce is granted.
You may be unsure whether you want a divorce. You may want to separate. In an ideal world, maybe your spouse will change his or her behavior, or maybe you are unsure whether it is the right time to divorce. This does not mean you have to stay under the same roof as your spouse. Separation allows you to be together but separately. You do not have to file for divorce to fulfill the requirements of a separation. You simply have to meet the contractual obligations contained within a written separation agreement.
A written separation agreement usually includes how much child support will be paid by the parent who is not living in the house with the children, as well as the amount of spousal support and/or alimony. It makes arrangements for how marital property will be divided and how debt obligations will be managed while the couple is separated. And it includes a plan for the time each spouse will have with the children, which can be detailed and may include specifics for weekend visitations, and week-long visitations in some cases.
You can also adjust how difficult issues such as health insurance and taxes will be handled. It can also address how a spouse will pay his mortgage and other debts. Spousal maintenance is also a contentious and difficult issue that can be addressed in a separation agreement. These terms can be negotiated and may save time and money later on in a divorce petition.
Legal Basis for Separation Under Alabama Law
To pursue a legal separation in the state of Alabama, the separating couple needs valid legal grounds under state law. In this state, the reasons are outlined in sections 30-2-1 and 30-2-52 of the Code of Alabama. Ground number one is voluntary separation. This essentially means that the couple has lived apart without cohabitation in a peaceful manner for a period of more than one year. Couples require either one year of legal separation or a definitive end to their marriage for a minimum of six months if they have dependent children. Any period of cohabitation including sex during this time terminates the one-year waiting period. The law does not require proof of irreconcilable differences as the specific reason for the separation. Section (c) of 30-2-1 states that "the filers must be content by way of voluntary separation." It is understood that a couple cannot live together if they are not content with each other. In a divorce case, an individual must prove two living separate and apart for the prescribed amount of time to obtain a divorce. When spouses file for divorce based on a voluntary separation, they will be assigned a divorce hearing approximately three months ahead of time. A decree of divorce will be awarded at this time as the spouses have been living separate for the designated time.
Steps to Achieving a Legal Separation
Typically, the process of legal separation in Alabama begins with the filing of a complaint for legal separation in the Circuit Court of the County in which the parties are residents. It is imperative that you and your spouse have resided in Alabama for at least six months prior to the commencement of the action in order for the Court to have jurisdiction over you and your spouse. The Complaint must be served upon your spouse who has 30 days to file an answer with the Court. If the other party does not agree to the entry of a legal separation you can obtain what is known as "entry of default" by your spouse. This is a procedural step that will allow you to go to court and secure the legal separation granting you alimony and/or any provision you like as if the divorce had been litigated in court and a decree entered.
Financial Implications of a Separation
In any legal separation in Alabama, one of the first things that is going to be considered is the parties’ income and their expenses. If the parties are unable to agree on what is going to happen regarding alimony or child support while they are legally separated, then you are going to need to file a Petition with the Court to have these things determined (and possibly ask for a temporary hearing). Even if the parties’ agree on child support and alimony, they are still going to need to ask the Court to approve the agreement and have it made an order of the Court.
Once the issue of financial matters during the legal separation arise, you should expect to complete a Financial Affidavit. Typically, the attorneys involved will work together to make sure that their clients complete the Proper Affidavits in a timely manner. These Affidavits will include the parties’ income, their expenses, marital and non marital property, debts, and any other necessary information regarding their finances. In cases when the parties are actually in Court (unless directed otherwise), you can expect the attorneys involved to exchange their Affidavits after they have completed them and you sign them (you should revise them as needed before they are signed!). As long as both parties have had the opportunity to review the other’s Affidavit, the lawyers will leave it to the Court to work out any disputes regarding what should be included or not.
Apart from the Financial Affidavits, a parent may also have to complete a Child Support Calculation Sheet. If a couple signs a separation agreement regarding child support, it is a good practice to also attach this Child Support Calculation Sheet to the agreement to ensure that it complies with the law. Make sure that you do not count Social Security benefits for children towards the income of the household. If you do, the Court may order a modification because Alabama courts generally do not allow parents to count Social Security benefits in regards to child support.
Separation Custody and Support
The laws of Alabama address custody and support for minor children even during the period in which a couple is separated and on their way to divorce. The legal system is clear about shifting circumstances and the need to make adjustments as necessary.
In essence, child support is calculated as soon as an action for divorce is commenced, so an agreement between the parties is not essential to get child support payments in motion. An existing agreement may be legal, but an enforcement action is sometimes necessary to secure the documents in such a situation.
The amount of payment is calculated as a percentage of gross income of the paying parent , as established by the 2001 Child Support Guidelines:
• 12 percent for one child
• 14 percent for two children
• 16 percent for three children
• 18 percent for four children
• 20 percent for five children
• 22 percent for six or more children
Support orders can specify the time and method of payment and choices usually include direct bank draft, payroll allotment, court clerk deposit, cashier’s check and credit card. The role of the court is to monitor ongoing payments.
When it comes to custody, the preference of the parents is given consideration, but the best interests of the child are of paramount importance as well, so parents are wise to focus on providing stability and nurturing, as well as the financial security that is so essential.
Separation versus Divorce Under Alabama Law
In terms of how the law is applied, a divorce and a legal separation are not all that different in Alabama. The law article "Divorce vs Legal Separation in Alabama" from Your SA Family Lawyer lists several commonalities:
Additionally, legal separation and divorce in Alabama are distinct from each other in that the parties are still legally married and the couple can only live apart; they cannot marry anyone else until they have legally divorced. For those people who do wish to legally end their marriage and they choose to seek a divorce, separation conditions will apply until the divorce is finalized, and some of these are quite similar to separation rules.
Therefore, getting a divorce in Alabama after being legally separated in the eyes of the law has no benefit at all. However, it should be noted that legal separation does confer certain distinct benefits to the parties involved. For instance, the spouse responsible for accorded health insurance and benefits will still be able to retain coverage under their plan. In terms of continuing or recovering spousal support, an individual would be left alone to pursue a claim for it should their spouse refuse to fulfill their obligations on the matter. The same would apply to custody and visitation issues to some extent.
Misconceptions Regarding Separation
When a couple decides to move toward a divorce, many people often wonder if they need to be separated for a certain amount of time before they can file for divorce. Many people are surprised to learn that Alabama is a no fault divorce state. This means that if they are unhappy in their marriage, there is no waiting period other than what’s necessary to resolve child custody issues, division of assets and property, etc.
In addition to wondering about a waiting period, many people think that if they have been separated for a while they are free to date again. Unless you have filed a petition for divorce, there is no legal separation under Alabama law. If you decide to live apart without actually filing a divorce, you are still married. This means you shouldn’t date other people and shouldn’t take on any contracts or obligations that will affect your spouse. For example, if you go out and buy a new car in your name with the intention that your spouse is going to be responsible for the payments, the lender can come after you for the amount due. The fact that you are separated will not protect you from the liability owed to the lender.
Many people also falsely believe they need to be living together or living apart to file for divorce. This is not true, either. The grounds for divorce are that the parties have "irreconcilable differences" which is a no fault determination. Once you file for divorce, it does not matter whether you are living together or apart, although living separately may make it less expensive to maintain two households.
One of our goals is to help you make informed decisions about your legal options. If you would like to talk to a divorce lawyer before filing for divorce, of if you have other questions about the process, call our Birmingham divorce lawyers.
Scheduling Advisor Consultation
A good attorney can be a dependable source of guidance during the process of legal separation. Having a knowledgeable voice on your side to help navigate through complex issues can not only benefit your case, but can also help you maintain peace of mind. The process of separation can be an emotionally and physically taxing time for you and your family, and having the right legal representation can help ease these struggles by providing you with resources and support. Finding the right attorney requires a bit of research to ensure that you find the most qualified legal professional for your needs. Consider the following when searching for a qualified attorney: • Ask trusted friends and family for recommendations – a personal referral is always a good place to start • Look on the Internet for local attorneys in your area – be sure to check reviews and client testimonials • Schedule an initial consultation to evaluate whether the attorney is the right fit for you • Choose a lawyer who has experience in the area of family law you need assistance with , such as child support, divorce, or child custody • Select a firm that has access to the resources needed to provide you with the best representation possible • Evaluate how you feel when interacting with the attorney and staff members – did they show you the respect and support you deserve? Are they ready and willing to answer all of your questions and concerns? Working with an experienced, qualified attorney can give you peace of mind and confidence throughout the process of legal separation. A good lawyer will have the resources needed to ensure that your needs are met and can provide an objective perspective to protect your best interests.