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.

If you want more information on the difference between a legal separation and a divorce, contact our office to schedule a consultation.

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. 

Filing for Divorce: The Next Steps

You have filed for divorce and you may be wondering, “What now?”  First of all, let’s talk about what “filing” for divorce means.  If you are talking to a divorce lawyer or court personnel, “filing” for divorce means you have actually filed a Complaint for Divorce with the Court.

A lot of clients will say they have “filed” for divorce, when, in reality, what they mean is they have consulted with a divorce lawyer, retained a divorce lawyer, or sent their spouse agreement paperwork to consider.

Once you have filed your Complaint for Divorce with the Court, what comes next?  Once your complaint is filed, it becomes an official pending case with the Court system.  It will be assigned a unique case number.  Then, the Clerk of court issues the Complaint with a Summons for service.

If your complaint is filed electronically, this happens automatically, and your lawyer receives the summons immediately in their email.  If you are representing yourself and you paper-file a complaint at the courthouse, it takes more time for the clerk to process the hard copies.

Next, you (or your lawyer on your behalf) are responsible for having your spouse personally served with the Complaint for Divorce.

Who Can Serve Divorce Papers: Understanding Your Options

Service of process in a divorce case is dictated by Rule 4 of the Alabama Rules of Civil Procedure.  Personal service can be affected by a process server, which may be either the sheriff’s department or “other designated person”, also known as a private process server.

A private process server can be any person over the age of nineteen, who is not a party to the case, and who is not related within the third degree by blood or marriage to the party seeking service of process.

We recommend that all of our clients use a private process server, as it has proven time and again to be the most efficient option for a fairly small expense, typically between $55.00 – $125.00.  Another benefit of using a private process server is that you can communicate with them as to the best time to serve the Defendant.

This is especially important in divorce cases where often parties still reside together.  There may also be domestic violence issues, so it is important to have your safety plan in place prior to service.  You are not able to do any of this coordination with the sheriff’s department, which is why our firm recommends private process servers.

Service can also be accomplished via certified mail, but this method tends to be very unreliable as people anticipating litigation tend to not pick up their certified mail.

The Defendant may also accept service by picking up a copy of the Complaint and Summons from the Clerk of Court.

What Constitutes “Good” Service?

First, service must be accomplished within 120 days of the filing of your complaint, or your case will likely be dismissed by the Court.

Rule 4 of the Alabama Rules of Civil Procedure also sets out what is considered to be valid service under a variety of circumstances.  If the Defendant is an adult, then they can be served by handing the paperwork directly to them, by leaving the paperwork at their residence with another competent adult who also resides there, or by delivering it to an agent authorized to receive service of process on their behalf (such as if they have someone with Power of Attorney).

If the Defendant is a minor, their parent or guardian must be served, and, if the minor is over the age of 16, they must also be served.  If the Defendant is incompetent, then service is effected upon their legal guardian or other caregiver if there is no legal guardian.

If the Defendant is incompetent and confined to an institution for the mentally ill, then service must be effected upon the superintendent of the institution.  If the person is incarcerated in prison or jail, they still must be personally served.

If the Defendant lives in another state, they may still be personally served by a private process server or by certified mail.

After Serving Divorce Papers: What to expect

After the divorce papers are served, the process server has to complete the return on service section of the summons which was previously issued by the clerk of court.

This form says the first and last name of the person served, the date and time of service, and includes the signature of the process server.  The process server either returns this form directly to the court, or to your attorney for filing with the court.

Once the Defendant has been served, they will typically retain their own attorney to file an answer to the complaint for divorce and a counterclaim for divorce.

Your attorney receives copies of all filings via email, and we will send you copies of those filings the same day via your confidential, secure client portal.

Timelines and Wait Times

The date of service is the date that all relevant timelines begin to run.  The Defendant has 30 days from the date they were served to file an answer to the complaint.  We almost always serve discovery for the Defendant to answer along with the initial complaint.

Discovery is made up of questions the Defendant must answer and documents and other tangible items they must provide about issues relevant to the divorce case, such as assets, debts, and physical evidence.  The Defendant has 45 days from the day they were served to answer their discovery in this fact situation.  If they do not answer timely or completely, there are certain legal procedures we must follow to obtain their answers.

Discovery is typically the longest part of the divorce process, as we want to make absolutely sure we have complete information before taking your case to trial.  Discovery can also include the filing of subpoenas for records to non-parties and depositions of the parties or other witnesses.  The discovery process typically takes several months.

If your divorce case cannot be settled without a trial, it typically takes 6-12 months in Mobile County to get to a trial date after your complaint for divorce is filed and service is completed in your case.

If you are looking for a firm that can be there with you every step of the way to make sure things are done right, from the initial service of process all the way through the conclusion of your case through settlement or trial, contact Herlihy Family Law.

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.