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 Divorce in Alabama
Topics Covered Here:
1. Grounds
Alabama has many grounds for divorce. Some of these grounds are:
- voluntary abandonment for one year
- physical cruelty
- adultery
- addition to alcohol or drugs
- incompatibility of temperament
- irretrievable breakdown of the marriage.
These last two grounds are the basis for what is commonly
called "no-fault" divorce. This simply means that the parties want a divorce
because they are unable to get along to such an extent that the marriage
has suffered irreparable damage. No proof of fault is necessary, although
fault may be considered by the judge at trial. Most divorces can be obtained
on "no-fault" grounds.
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2. Residency
There is a residency requirement which must be satisfied in order for
an Alabama court to have jurisdiction to grant a divorce. This requirement
is satisfied if both parties or the defendant permanently resides in Alabama.
If the defendant does not reside in Alabama, the plaintiff must have been
domiciled in Alabama for six months immediately preceding the filing of
the divorce complaint. There are limited exceptions which may apply if
you do not qualify under these rules.
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3. Divorce v. Legal Separation
In some instances a couple with marriage problems may wish relief short
of divorce. They may object to divorce because of religious conviction
or in order to retain health insurance or military benefits. In a divorce
from bed and board, commonly called a "legal separation," or in a suit
for separate maintenance, the parties remain married after the legal proceedings.
As in a divorce, legal separation and separate maintenance consider custody
of the children, child support, alimony and property use or division. Using
the legal separation or separate maintenance, either party can sue for
a divorce on one or more grounds cited above.
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4. Divorce Proceedings
Divorce proceedings may consist of several events and phases: fact gathering
from you, attempts to achieve an uncontested divorce, filing the complaint,
information gathering from your spouse, records and witnesses, settlement
negotiations, and the trail.
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5. Uncontested Divorce
An uncontested divorce can often be obtained quickly and at less expense
than a contested divorce. It can only occur when both parties agree to
all of the terms of the divorce. It is often therapeutic for parties and
the children to work out a divorce agreement. Disputes over child custody,
child support, visitation rights, alimony, or property division will prohibit
an uncontested divorce. Since I can ethically represent only one party,
it is necessary to tell your spouse of this fact and that it may be in
his or her best interest to hire a lawyer.
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6. Starting the Proceedings
A divorce case begins with the filing of a complaint in the circuit
Court. Costs vary among the counties, but generally the filing fee is approximately
$200.00. The party filing the complaint is the plaintiff and the opposing
party, the defendant. The complaint is normally filed in the county where
the defendant resides or where the parities reside at the time they separated.
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7. Service of the Complaint
The law of Alabama requires that the defendant must be made aware of
the suit for divorce. This procedure is known as service of process. When
a divorce complaint is filed, a request is made for the sheriff to deliver
a copy of the complaint to the defendant or for the court clerk to mail
a copy by registered mail to the defendant's last known address. To avoid
the embarrassment often associated with being served by the sheriff, the
defendant may sign a waiver acknowledging receipt of a copy of the complaint.
If your spouse has a lawyer, your spouse may authorize the lawyer to accept
service. In some cases service may be achieved by publishing notice in
a newspaper.
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8. Physical Separation
The law does not require the parities to be physically separated and
living apart before filing the divorce complaint. However, some judges
may require it.
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9. Child Custody
The Supreme Court of Alabama has adopted guidelines for use in determining
the amount of child support to be paid by the non custodial parent. Once
my office has all the relevant facts, we can estimate the amount of child
support. The amount of child support depends on the income of the parties
and the needs of the children. The law only requires support of a child
until the child's 19th birthday. If special needs are present such as for
a disabled child, child support can be extended past age 19. By agreement,
the parties may extend the age limit or provide specifically for higher
education.
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10. Visitation
The judge will generally approve the visitation periods agreed to by
the parties. Visitation rights may be general ("at reasonable times") or
specific ("every 1st and 3rd weekends from Friday at 6:00 PM until Sunday
at 6:00 PM, one month during summer vacation, one week each Christmas to
include Christmas Day on alternate years, alternate spring vacations, Thanksgivings,
and Easter, Father's Day and Mother's Day, and on the spouses birthday").
Special visitation rights may be awarded if the parents do not live close
to one another.
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11. Alimony
Alimony is the money paid by one spouse to the other in recognition
of the duty to support and maintain the other spouse. It is available in
Alabama. The amount and duration of alimony awarded is different in every
case. Some of the factors considered by the judge in awarding are: length
of the marriage, ages of the parties, assets and liabilities, income, earning
capabilities, the degree of fault of the parties in causing the divorce,
stations in life, and health.
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12. Property Division
There is no formula for determining how the property (land, money, automobiles,
household goods, etc.) will be divided. If the parties can reach a reasonable
agreement, the judge will generally approve it. Otherwise, the judge will
make a decision considering such factors as length of the marriage, relative
earning capacities, assets and liabilities, custody of the children, and
the fault of the parties in causing the divorce.
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13. Temporary Relief
Under certain conditions the judge may give temporary relief before
the divorce is finalized. On showing of the potential for irreparable harm,
the judge may prohibit any party from harming or harassing his or her spouse,
and from selling property belonging to the parties. It is important to
tell the attorney if you are afraid your spouse will harm you or your children
in any way. The judge may direct a spouse, usually the husband, to move
out of the house pending the trial, however this is done only in rare cases
where the spouse and or children are in danger of irreparable harm. The
judge may also grant temporary relief by awarding custody of the children,
requiring the payment of child support and alimony, setting visitation
rights, and requiring payment of attorney fees, all pending trial.
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14. Changing the Wife's Name
The Wife may legally change her name through the divorce proceedings
to resume the use for her maiden name or name by a previous marriage. The
children will retain the name of their father.
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