- Legal Overview
- Divorce Process
- Grounds for Divorce
- Division of Property
- Spousal Support
- Child Custody
- Child Support
In order to file for divorce in the state of Alabama, you must have been a resident of the state for at least 6 months. The papers for dissolution of marriage must also be filed in a county where either of the spouses resides, or the county where the spouses last lived together. There are many different grounds for divorce in Alabama all of which are created by statutes. The most commonly used ground is incompatibility. Read our detailed legal summary of Alabama including residency, grounds, child custody, child support, property, legal separation, and alimony
Divorce by Default or Trial
Two common methods of obtaining a divorce are by default or by trial. A default divorce occurs when the party against whom the divorce suit is brought fails to respond within the time limits set by law.
If the defendant does appear and files a response to the complaint, the case will be set for a trial. In this set of circumstances, unless the case is settled prior to its going to trial, there will be an actual trial before the Judge with each party having the right to call witnesses.
In either case the Judge must decide all of the pertinent issues, such as whether or not a divorce will be granted, custody of the children, amount of child support, alimony, and division of property. The Judge will decide all of these issues and will make the final decision concerning the divorce. The difference is that if there is a default, the Judge will base his ruling on the oral or written testimony of only the party who filed the suit.
The most common type divorce today is one in which the divorce is not contested. This means that the parties, both husband and wife, agree to get a divorce. In such a divorce, the parties usually enter into a written marital agreement defining their rights and duties and other issues of the divorce.
Legal Separation and Separate Maintenance
Married couples in Alabama have two divorce related remedies that fall short of an absolute divorce:
- Legal separation may be appropriate where one party wishes to live apart from his or her mate but does not desire to obtain an absolute divorce. Neither party can remarry while the decree is in effect. A court approving a petition for a legal separation may award temporary support, alimony, child support, custody of children, and make all other orders like those made when a final divorce is entered.
- Separate maintenance differs from the concept of a legal separation in several respects. A party requesting separate maintenance need not prove that he or she has the grounds to obtain a final divorce and is purely within the discretion of the court. A petition for separate maintenance may be sought by the wife when a husband and wife are living apart and, through no fault of the wife, the husband refuses to support either the wife or his dependents. The fact that a wife earns a separate living will not bar her from asking a court to enter an order of separate maintenance.
You should discuss the amount of the attorney’s fees and who will pay them in your first discussion with your attorney. Factors that affect the attorney’s fee in a divorce include child custody, the size and complexity of any property settlement, tax advice, alimony settlement, fault of the parties, et cetera.
Grounds for Divorce
There are many different grounds for divorce in Alabama all of which are created by statutes. The most commonly used ground is incompatibility. In practice, it is ordinarily not difficult to convince the court that incompatibility exists sufficient to dissolve the marriage relationship. A divorce based on this ground is commonly referred to as a “no fault” divorce. However, even though a finding of fault is not necessary to the court’s decision to grant a divorce, it is often a very important factor in such matters as child custody, alimony, and division of property.
Other grounds for which divorce in Alabama may be granted include: adultery, desertion, imprisonment in the penitentiary for certain prolonged periods, addiction to alcohol or drugs, mental incapacity, cruelty, or conditions which existed at the time of the marriage without the knowledge of the other party such as pregnancy and incurable physical problems which keep one spouse from entering into the normal marriage state.
Division of Property
It is within the discretion of the court to order a transfer of property owned individually by either spouse or jointly-held property in order to “do equity” between the parties. The court has power to order either party to give or convey his or her interests in stock, vehicles or real estate to the other spouse in exchange for the release of marital obligations. Because the parties are most familiar with their own property, the divorcing couple should work out an acceptable division of assets between themselves. Severe tax consequences can result without proper planning in the division of the property.
Either a husband or wife may be entitled to alimony if the court determines he or she needs support and the other party is able to pay. There are two types of alimony: temporary and permanent. Temporary alimony is awarded the needy party during the time after a divorce suit is filed while awaiting trial or final court decision. Permanent alimony is that which is awarded by the court in its final decree. Permanent alimony can either be “in gross” which is a fixed total amount and cannot be changed, or “periodic” which is an amount payable on a regular basis without a fixed total and which can be modified under some circumstances.
The award of alimony is completely discretionary with the court which considers such factors as the length of the marriage and the age, earning capacity, health, conduct, education, and income of each of the parties. Alimony is separate and apart from any property division between the parties.
In a divorce action, the court determines the custody of the parties’ minor children. The court makes its determination based on the following factors: best interest and welfare of the children, fault of the parties, character and conduct of each parent, age and sex of the children, past care and custody of the children, economic conditions of the parents, preference of the children, and custody agreements between the parties. The parent who does not have custody of the children has the right to visit the children or have them visit him or her.
It is the responsibility of the court to determine the amount that the non-custodial parent is responsible to contribute for support of the minor children
The court must use the Child Support Guidelines adopted by the Alabama Supreme Court in setting the amount of child support, unless the court specifically finds that following the uidelines would be unjust and inappropriate. The court combines the income of the divorcing parents, determines from the Guidelines the applicable amount of child support for the number of children of the marriage based upon that income, adjusts this amount for work-related child care expenses and health insurance premiums, and then assigns a portion of that support amount to the non-custodial parent based on his/her percentage share of the combined income.
The most important factors to be considered by the court in making an award of child support are the needs of the children and the parent’s ability to earn and pay his/her portion of the support. A parent’s obligation to pay child support may be based on his or her demonstrated ability to earn a certain amount of money, not what that parent is choosing to earn.
Child support is paid until the child reaches the age of majority, but can be extended beyond that time under certain circumstances, such as during post majority education (college), or where the child is mentally or physically disabled.