What is the difference between divorce and a legal separation?
Divorce is a big decision – no, it’s a huge decision. Understandably, we often see clients who come in for an initial consultation who are unsure about whether to take the big step of filing for divorce. Many clients ask whether they should consider a legal separation. If you are wondering what is the difference between divorce and a legal separation, this article will explain what makes these two options different.
What is legal separation anyway?
The Alabama Code provides for legal separation at Ala. Code §30-2-40, which states as follows:
(a) The court shall enter a decree of legal separation if all of the following requirements are satisfied:
(1) The court determines that the jurisdictional requirements for the dissolution of a marriage have been met.
(2) The court determines the marriage is irretrievably broken or there exists a complete incompatibility of temperament or one or both of the parties desires to live separate and apart.
(3) To the extent that it has jurisdiction to do so, the court has considered, approved, or provided for child custody, and has entered an order for child support in compliance with Rule 32 of the Alabama Rules of Judicial Administration.
(b) 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.
(c) If a party files a complaint for a decree of legal separation rather than a decree of dissolution of marriage, the court may grant the legal separation. The terms of a legal separation can be modified or dissolved only by written consent of both parties and ratification by the court or by court order upon proof of a material change of circumstances. A proceeding or judgment for legal separation shall not bar either party from later instituting an action for dissolution of the marriage.
(d) The court shall order that the terms of the legal separation relating to alimony or a property settlement be incorporated into a final divorce decree only if agreed to by the parties. Otherwise, the court may consider, but is not bound by, the provisions of the legal separation relating to alimony or a property settlement upon a final dissolution of the marriage.
(e) If either party to a legal separation later institutes an action for dissolution of the marriage, the best interest of the child standard shall apply to the determination of child custody.
(f) Upon written consent by both parties, after entry of a decree of legal separation, all of the following provisions shall apply:
(1) The earnings or accumulations, including the retirement benefits, of each party received after the entry of the decree of legal separation are the separate property of the party acquiring the earnings or accumulations, and shall not be considered by the court in a subsequent divorce action.
(2) A spouse may convey his or her real estate without the signature or consent of the other spouse.
(3) Each spouse may waive all rights to inheritance from the other spouse pursuant to Section 43-8-72.
(g) Court costs for a legal separation may be assessed as if a dissolution of the marriage was requested and may be taxed by the court accordingly.
Ala. Code 30-2-40 Legal separation (Code Of Alabama (2023 Edition))
It is important to note that in the code section above, the terms divorce and dissolution are used interchangeably.
In a legal separation, one party would file a complaint for legal separation. In order to obtain a decree of legal separation, both spouses have to want a legal separation instead of a divorce.
If one spouse files a complaint for legal separation and the other spouse files a complaint for divorce, the court will grant the divorce.
Many clients think that a legal separation is a more informal matter that takes less commitment or less expense than a divorce, or they view it as more of a temporary measure.
A legal separation is filed just like a divorce and can involve extensive financial discovery if those issues are contested.
As you can see from the Alabama Code, a court has wide-ranging powers in what can be addressed in a legal separation. A legal separation can include custody and visitation with children, child support, alimony, and division of all of the marital assets and debts.
The main difference between a legal separation and a divorce
After you jump through all the procedure hoops, you are still married to the other party when your legal separation is final.
If you decide you want to divorce later, you still have to file for divorce and jump through all the same procedural hoops, potentially costing yourself a lot more money by going through very similar proceedings twice.
If you and your spouse need time apart while you work on your marriage or decide if you want to file for divorce, you can always agree to live separately without going through the formal process of filing a legal separation.
After 18 years of practicing family law, I have only ever handled a few legal separations in my career. The reason is because a legal separation does not meet the needs of the vast majority of clients.
Very rarely, we will see client who has very specific reasons that they need or want to separate legally but remain married to each other – a couple of examples would be religious reasons; clients who know they will never get remarried and see no reason to be divorced; or if parties need to remain legally married for insurance or other benefits.
As explained above, if you legally separate, you are still married.
Author: Alison Herlihy
Family law attorney Alison Herlihy is a native of Mobile, Alabama. Alison has engaged in the private practice of family law since 2005, focusing primarily on domestic relations, divorce and child support, child custody law, adoption law, juvenile, probate practice, and wills.
Alison Baxter Herlihy earned the prestigious AV Preeminent peer review rating from Martindale-Hubbell, which recognizes attorneys for the highest levels of legal ability and professional ethical standards. Alison is a certified Guardian Ad Litem. In 2015, Alison became a Registered Mediator on the Alabama State Court Mediator Roster, in both general and domestic relations mediation.