DIVORCE IN ALABAMA This information is provided to answer some of your questions about divorce and our legal representation of you. This material does not attempt to get into the specifics of your case or to cover every aspect of the law; rather, it provides general information that will be useful to you in these proceedings.
1. Reconciliation We have an ethical obligation to explore the possibility of reconciliation between you and your spouse. We recommend you consider marriage counseling to try to work out your marital problems. Our policy is to encourage such efforts. The divorce proceedings can be stopped at any time. We will recommend marriage counselors at your request.
2. Confidentiality We must have all the facts to represent you properly. Anything you tell anyone in this office will be held in strict confidence and will not be disclosed without your permission. For this reason, you should not withhold any information from us and, above all, we must have the truth. During the course of the proceedings, it is in your best interests not to discuss your case with other parties. We advise you not to do so. Such parties may be called to testify against you in court.
3. Grounds Alabama has many grounds for divorce. Some of these grounds are: voluntary abandonment for one year, physical cruelty, adultery, addiction to alcohol or drugs, incompatibility of temperament, and 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 it may be considered by the judge on trial. Most divorces can be obtained on “no-fault” grounds.
4. Residency A residency requirement 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 reside 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. Limited exceptions may apply if you do not qualify under these rules.
5. Legal Separation In some instances a couple with marital problems may wish relief short of divorce. They may object to divorce because of religious convictions or in order to retain health insurance or military benefits. In a legal separation, the parties remain married after the legal support, alimony and property use or division. During the legal separation, either party can sue for a divorce.
6. Divorce Proceedings Divorce proceedings generally consist of several events and phases: fact gathering from you; attempts to achieve an uncontested divorce; filing the complaint; fact gathering from your spouse; records and witnesses; trial preparation; and the trial. Settlement negotiations will be explored throughout the proceedings.
7. Uncontested Divorce An uncontested divorce can offer be obtained quickly and at less expense that a contested divorce. It can only occur when both parties agree to all of the terms of the divorce. Disputes over child custody, child support, visitation rights, alimony, or property division will prohibit a divorce from being uncontested. Generally, only one lawyer is involved. Since we can ethically represent only one party, we will tell your spouse that it may be in his or her best interest to have a lawyer. We will communicate with your unrepresented spouse in your presence.
8. Starting The Proceedings A divorce case begins with the filing of a complaint in the Circuit Court. The filing fee is approximately $150.00, but the filing fee differs from county to county. 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 parties resided at the time they separated.
9. 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. If your spouse has a lawyer, your spouse may authorize the lawyer to accept service.
10. Children The divorce proceedings will determine several issues involving the minor children of a marriage.
a. Child Custody In determining which parent is to be granted custody of a child, Alabama courts look to the “best interests of the child.” Some of the factors the judge will consider in awarding child custody are: the age and sex of the child; characteristics and needs (emotional, social, moral, material, and education) of the child; home environment of each parent; characteristics of the parents (age, character, stability, and mental and physical health); capacity and interest of the parents and between children; and recommendations of expert witnesses. The desires of older children may be considered by the judge.
Regardless of which parent is granted custody, the non-custodial parent will be granted reasonable visitation rights, except in extreme circumstances.
Joint custody or shared custody may be an alternative. Joint custody can be awarded in a trial by the judge or can be agreed to by the parties. Before agreeing to a joint custody arrangement, you should understand what it is. The Code of Alabama defines joint custody as being “joint legal custody” and joint physical custody.” It further defines “joint legal custody” as:
Both parents have equal rights and responsibilities for major decisions concerning the child, including, but not limited to, the education of the child, health care, and religious training.
The Code defines “joint physical custody” as:
Physical custody is shared by the parents in a way that assures the child frequent and substantial contact with each parent. Joint physical custody does not necessarily mean physical custody of equal duration of time.
The court retains jurisdiction of the custody issue following the divorce. If a change of circumstance (unfitness of custodial parent, child abuse, etc.) occurs following the divorce, the court can modify the decree to change custody. However, the parent who seeks such a modification has a higher burden of proof than is required to gain custody under the divorce proceedings. The non-custodial parent must show that the change in custody will materially promote the child’s best interests and welfare and that the positive good brought about by the change in custody would more than offset the inherently disruptive effect caused by uprooting the child.
b. Child Support 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 we have all the relevant facts, we can estimate the amount of child support. The amount of child support depends on the gross income of the parents from all sources and the needs of the children. The law requires that a child be supported financially until the child’s 19th birthday or until the child becomes self-supporting, whichever occurs first. However, support can be awarded through college. If special needs exist, such as for a retarded child, child support can be extended past age 19. Child support may not be payable in a joint physical custody situation because the child generally will spend equal time with each parent. The court retains jurisdiction over the child support issues after the divorce. If a change of circumstances (change in income of either parent, greater need for child, etc.) occurs following the divorce, the court can modify the decree to change child support.
c. Visitation When one parent is granted sole physical custody of a child, the non-custodial parent will be granted visitation rights with the child. 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 p.m. until Sunday at 6:00 p.m., one month during the summer vacation, one week each Christmas to include Christmas Day on alternate years, alternate spring vacations, Thanksgivings, and Easters, Mother’s Day and Father’s Day, and on the spouse’s birthday, etc.”). Special visitation rights and transportation costs may be awarded if the parents do not live close to one another. The court may modify visitation rights on a change of circumstances (for example, if one parent moves).
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. Alimony may be periodic, payable by the month or other period, or it may be in gross, payable in a lump sum. Periodic alimony ends on the death or remarriage of the receiving spouse. The amount and duration of alimony is different in every case. For example, rehabilitative alimony may be paid for a specific period to allow the receiving spouse to get an education or to receive training in order to earn income. Some of the factors considered by the judge in awarding alimony are: length of the marriage, ages of the parties, assets and liabilities, incomes, earning capabilities, the degree of fault of the parties in causing the divorce, stations in life, and health. The court retains jurisdiction of the periodic alimony issues after the divorce. If a change of circumstances (change in income of either party, greater needs, etc.) occurs following the divorce, the court can modify the decree to change periodic alimony.
12. Division of Marital Assets There is no formula for determining how the marital assets (house, land, business, money, automobiles, household goods, retirement benefits, and other assets acquired during the marriage) will be divided. Property acquired before the marriage or by inheritance will not be considered a marital asset for division unless such property was used regularly in the marriage. If the parties can reach a reasonable agreement as to the division of marital assets, the judge will generally approve it. Otherwise, the judge will divide the marital assets considering such factors as the length of the marriage, relative earning capacities, assets and liabilities, custody of the children, and the fault of the parties in causing the divorce. The judge is required to make an “equitable division” of the marital property. An equitable division means a “fair” division, not an “equal” one.
13. Retirement Benefits Retirement benefits may be considered marital assets if acquired during the marriage of 10 years or longer. Retirement plans (including pension, profit sharing, defined benefit, and sock bonus plans) qualifying for tax-exempt status under the Employment Retirement Security Act of 1974 (ERISA) are subject to division under a Qualified Domestic Relations Order (QDRO). Likewise, Individual Retirement Accounts (IRA) may be considered as marital assets for division. Government retirement benefits including military may also be considered in property division.
14. Health Benefits The Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA) insures that group hospitalization and major medical insurance coverage existing through a spouse’s employment during the marriage can be continued for the benefit of the other spouse following the divorce. The Omnibus Budget Reconciliation Act of 1993 (OBRA ’93) and Alabama law make the same benefit available for children under a qualified medical child support order (QMCSO).
15. Tax Implications Divorce carries with it many tax implications. These implications will be discussed with you. A spouse who pays periodic alimony may deduct the payments for tax purposes and the spouse who receives periodic alimony must include such payments as income. Alimony in gross and transfers of property are generally not taxable events. Although negotiable, the custodial parent can generally claim children as dependents for income tax purposes. Keep in mind these are general rules. The facts in your case will determine how the tax provisions apply to you.
16. Temporary Relief Under certain conditions the judge may give temporary or relief “pendente lite.” 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 marital assets. It is important to tell your attorney if there is reason to believe your spouse may harm you or your children in any way. The judge may direct a spouse, usually the husband, to move out of the marital residence pending the trial. 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. Such relief can also be obtained under the Protection from Abuse Act.
17. Changing the Wife’s Name The wife may legally change her name through the divorce proceedings to resume the use of her former name. The children will retain the name of their father.
18. Settlement v. Trial Usually the final proceeding in a divorce action is the trial. Although it will vary among judges, you can expect a trial approximately six months after the complaint is filed. Divorce actions are tried before a judge and not a jury. We are obligated to explore the possibility of a settlement throughout the divorce proceedings. If we think it to your advantage, we will so advise you. However, the choice is always yours. You must not be afraid to try your case. A settlement made merely to avoid a trial is not wise.
19. Relationship with a third party Since you are still married until the judge divorces you, do not maintain a sexual relationship during the divorce proceedings. Any relationship, innocent or otherwise, may be construed to be sexual in nature. Doing so can affect your case. You may be under surveillance.
20. When the Divorce is Final By law, before signing the decree, the judge must hold the pleadings 30 days after the complaint is filed. A divorce is final on the day the judge signs the decree or judgment. In Alabama, the parties to a divorce cannot remarry, except to each other, for a period of sixty (60) days from the final decree. If the decree is appealed to the appellate courts, it must be done within forty-two (42) days from the date of the final decree and the parties cannot remarry until the appeal has been resolved.
21. Our Professional Services In a divorce action there is no “winner”. Rarely will either spouse emerge the victor. Your legal problems will be given our continuing personal attention in an effort to obtain the best results possible in the most reasonable time and at a reasonable cost.
22. Our Fees We think it very important that you understand our fees policy. Our fees are based on the services we provide you and are charged on a time basis. All time spent on your case is charged to your account. Our services may include conferences with you and witnesses, telephone conversations, preparation of legal pleadings and documents, dictation of letters, reviewing pleadings and other documents from the opposing attorney, legal research, preparation for trial, the trial, etc. Additionally, you will be charged for expenses incurred in your case such as filing fees, long distance telephone calls, photocopying, faxing, depositions, witness fees, etc. We will enter into a written agreement with you concerning our fees and expenses and the payment thereof. We analyze each bill before it is mailed to you. We ask that you keep current the payments on our bills. Please feel free at any time to discuss our bills with us.
23. Keeping You Informed We will keep you informed of what is going on in your case. You will receive various documents from us during the proceedings. Some will be prepared by us, others by your spouse’s lawyer. Keep these together for reference. On occasion, a document filed by your spouse’s lawyer will require some action on your part. There may be periods when you do not hear from us. This inactivity does not mean we have forgotten you or that we are not working on your case. Please feel free to call or to make an appointment to see us at any time if you have questions. We attempt to return our calls as soon as possible. A secretary or legal assistant may have the information you need, but our staff will not give legal advice.
24. General Suggestions Your well-meaning friends may offer you advice about your case. You may hear tales about awards in other divorce cases. The facts surrounding your marriage, divorce, children and property are unique and differ from every other case. Divorce proceedings are very emotional and at times parties use such proceedings to seek revenge. Children are often used by parents to punish the other parent. Prepare your children properly for the divorce without poisoning their minds about your spouse. Attempt to cooperate with your spouse when the children are involved.
25. New Wills Under Alabama law, divorce invalidates provisions for your spouse in your will and vice versa. However, divorce does not invalidate separate contracts such as insurance. Following the divorce you will probably need a new will. If you wish to have a will or to have an existing will revised, please tell us. Additionally, you will need to review any insurance contracts and accounts under which you have designated your spouse (or possible ex-spouse) as the beneficiary and make the necessary changes along with your wishes.
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The following is required pursuant to Rule 7.2, Alabama Rules of Professional Conduct: No representation is made that the quality of legal services to be performed is greater than the quality of legal services performed by other lawyers. Disclaimer This website is purely a public resource for general information. It is intended, but not promised or guaranteed, to be correct, complete, and up-to-date. This website is not a source of legal advice. Accessing the material provided in this website does not create an attorney-client relationship. You should not rely solely on the information provided on this website, and should always seek the advice of a competent lawyer in your state. The owners of this website are attorneys licensed to practice law in the State of Alabama. The owners of this website will not represent you if you are viewing this website in a state where this website fails to comply with all laws and ethical requirements of your state. Do not send the owners of this website, or any of the lawyers listed herein any information until you speak with one of them first. |