Section 30-2-40

Legal separation.

(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.

(Act 98–105, §1.)