Alabama Divorce Law

Divorce and Legal Separation in Alabama




Divorce and Legal Separation in Alabama Copyright HG.org

Alabama Divorce Basics

Divorce in Alabama is conducted as a civil action, with one party, plaintiff, filing a complaint for divorce, and the other party being named as a defendant.

Residency Requirement

To file for divorce in Alabama, one of the spouses must have been a bona fide resident of the state for six months prior to the filing of the Complaint. This must be alleged in the Complaint and proven.

Filing

A Complaint for Divorce may be filed in the circuit court of the county in which the Defendant (non-filing spouseresides, or in the circuit court of the county in which the parties resided when the separation occurred, or if the defendant is a nonresident, then in the circuit court of the county in which the Plaintiff (filing spouse) resides. Each jurisdictional court usually has a domestic relations or a family law department or division.

In an uncontested divorce, both parties may file in any county they choose.

A legal ground for Divorce must be alleged in the Complaint. Alabama requires a 30-day waiting period after filing the Complaint before the divorce may become effective.

The Plaintiff is required to provide the Defendant with a copy of the Complaint. The Defendant is not required to verify the Answer to the Complaint by oath, and whether sworn to or not, it is not evidence in the case, and can have no other effect than to put in issue the allegations of the Complaint.

If service by publication is required, the Alabama Rules of Civil Procedure should be followed.

Upon granting a judgment for Divorce, the Judge may direct whether the Defendant in the action is permitted to marry again. If no order is made disallowing the party the right to marry again, the party shall be deemed to have the right to remarry. If there is an order disallowing remarriage, if the party files a motion and shows proof, the Judge may then allow the moving party to marry again.

After granting a divorce, the court may order that neither party may remarry, except for each other, for a minimum of 60 days after judgment is entered. If an appeal is filed within 60 days of the divorce judgment, the court may order that neither party shall remarry, except each other, while awaiting the appeal.

Spouse's Name:

Upon request, the wife may resume the use of her maiden name or any previous surname.

After being granted a judgment of divorce, upon application of any interested party, the divorced wife may be legally prohibited from using the given name or initials of the divorced husband.

Legal Grounds for Divorce

There are 12 statutory grounds for divorce in Alabama, most of which require a finding of fault on the part of one of the spouses. However, two of these grounds, incompatibility and irretrievable breakdown, are considered no-fault and are used most often.

The statutory grounds are as follows.
      1. If, at the time of marriage, either party was physically and incurably incapacitated from entering into the marriage state;

      2. Adultery;

      3. Voluntary abandonment for at least one year prior to filing;

      4. Imprisonment in a penitentiary in any state for at least two years, with a minimum sentence of seven years;

      5. The commission of a crime against nature, with man or beast, either before or during marriage;

      6. Becoming addicted after marriage to habitual use of alcohol, opium, morphine, cocaine or other like drug;

      7. Incompatibility of temperament prohibiting the spouses from living together any longer, as determined by the court;

      8. Confinement of one of the parties, after marriage, in a mental hospital for a minimum of five successive years, if that party is hopelessly and incurably insane at the time of filing the complaint (a certified statement attesting to this condition from the superintendant of the mental hospital is required.);

      9. Irretrievable breakdown of the marriage, as determined by the court;

      10. If the wife was pregnant at the time of marriage without the husbandís knowledge or agency;

      11. If one party has committed violence against the other party or when his/her conduct causes a fear of such violence; or

      12. If the wife has lived separate and apart from the bed and board of her husband for at least two years without support from him, and she has resided in Alabama during the two year period.

Annulment

The annulment process in Alabama is largely based on case law. Grounds for annulment include the following:
  • One party consented to the marriage due to fraud or duress;
  • One of the parties was under 14 years of age at the time of the marriage;
  • One of the parties was under the influence of alcohol or drugs when the marriage ceremony took place;
  • Bigamy;
  • Inability to consummate the marriage due to impotency; or
  • Marriage between parties closely related by blood (such as father, mother, nephew or niece, sister or brother, uncle or aunt).

Property Division

Alabama is an equitable distribution state. This means the divisions of assets and liabilities should be fair and equitable. This does not mean 50/50.

The property that each spouse brought into the marriage is considered his/her separate property and is awarded back to the spouse upon divorce. The remaining property is divided between the spouses as equitably as possible.

Alimony and Support

A judge has far more discretion regarding alimony than child support. Factors such as standard of living the married couple enjoyed while together, earning power of each party and length of marriage are taken into account. When fault is determined as grounds for the divorce, the judge may also use the misconduct of the offending spouse as a determining factor.

Alimony is usually only ordered in the case of a long-term marriage, where one spouse has been economically dependent on the other spouse for the duration. When alimony is ordered it is generally for a finite period, allowing the spouse receiving the support to return to school to prepare him/her to enter or re-enter the job market.

Pending an action for divorce, the court may order alimony for the time period while the divorce action is pending.

If either spouse has no separate estate, or if it is insufficient for the maintenance of a spouse, the judge may grant alimony with the divorce. The judge may not take into consideration any property acquired prior to the marriage of the parties or by inheritance or gift, unless the judge finds from the evidence that the property, or income produced by the property, has been used regularly for the common benefit of the parties during the marriage.

The judge may include the present value of a future or current retirement benefit in either spouseís estate if the following conditions are met.
      1. The spouses have been married for a period of 10 years during which the retirement was being accumulated;

      2. The court may not include the value of any retirement benefits acquired prior to the marriage, including any interest or appreciation of benefits; and

      3. The total amount of the retirement benefits payable to the non-covered spouse shall not exceed 50% of all the retirement benefits that may be considered by the court.
If the court finds that any of the covered spouseís retirement benefits should be distributed to the non-covered spouse, the amount is not payable until the covered spouse begins to receive his/her retirement benefits or reaches the age of 65 years, unless both parties agree to a lump sum settlement of the non-covered spouseís benefits payable in one or more installments.

When alimony is ordered, the ex-spouse paying the alimony may petition the court to terminate payments if the ex-spouse receiving alimony has remarried or is living openly or cohabitating with a member of the opposite sex.

Child Custody and Support

Custody:

The best interest of the child standard applies when determining child custody.

In Alabama, there are 12 factors courts apply to decide who gets custody of the children:
      1. The sex and age of each child;

      2. The emotional, social, moral, material, and educational needs of each child;

      3. The respective home environments offered by each party;

      4. The characteristics of each party seeking custody, including age, character, stability, mental and physical health;

      5. The capacity and interest of each parent to provide for the emotional, social, moral, material and educational needs of the children;

      6. The interpersonal relationship between each child and each parent;

      7. The interpersonal relationship between the children;

      8. The effect on the child of disrupting or continuing an existing custodial status;

      9. The preference of each child, if the child is of sufficient age and maturity;

      10. The report and recommendation of any expert witnesses or other independent investigator;

      11. Available alternatives; and

      12. Other relevant matter the evidence may disclose.
These factors were set by the Alabama Supreme Courtís 1981 decision in Ex parte: Devine v. Devine (See Links to State Resources).

Support:

Alabama implements commonly used guidelines to determine child support, based on the Income Shares Model. The court reviews how much money each parent makes as a percentage of the total. Based upon the total income and the number of minor children for whom support will be ordered, a basic figure is identified on a large child support table. Costs for health insurance and child care can slightly affect the calculations. The parent without custody of the child(ren) will be ordered to pay his/her share of the total amount based upon the percentage of the total income he/she has.

Legal Separation

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 marriage.

The court may enter a decree of Legal Separation if all the following requirements are met.
      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 is complete incompatibility of temperament, or one or both parties desires to live separate and apart; and

      3. Within its jurisdictional limits, 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 (See Links to State Resources);
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 prohibit either party from later filing a complaint for dissolution of marriage.

The court may order that the terms of the legal separation regarding alimony or property settlement be incorporated into a final divorce decree, if both parties agree. If not, the court may consider the legal separation provisions but is not bound by them.

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 retirement benefits, of each party received after the entry of the decree of separation are considered separate property, and shall not be considered by the court in a subsequent divorce action;

      2. A spouse may sell or convey his/her real estate without the signature or consent of the other spouse; and

      3. Each spouse may waive all rights to inheritance from the other spouse pursuant to Section 43-8-72. (See Links to State Resources).

Court costs for a legal separation may be assessed as in a dissolution of marriage, and may be taxed by the court accordingly.

Links to State Resources

  • Alabama Rules of Civil Procedure

    Text of AL Rules of Civil Procedure. Service of a Complaint for Divorce by Publication must follow Rules of Civil Procedure.

  • Alabama State Law Library

    The Supreme Court and State Law Library serves the Alabama appellate courts, the Alabama judicial system, and the people of the state of Alabama. It contains all the reported decisions of the state and federal appellate courts in the U.S., plus the statutes of all 50 states and D.C.

  • Alabama's Judicial Circuits

    Map of Alabama's Judicial Circuit Courts, with contact information and website url's, where applicable.

  • Child Support Forms

    Instructions and forms for child support provided by the Alabama State Bar Committee on Pro Se Forms, and Alabama UJS forms from the Alabama Office of Courts.

  • Code of AL: Section 43-8-72

    Text of 43-8-72, Waiver of right to elect and of other rights. A spouse may waive all rights to inheritance from the other spouse pursuant to this section.

  • Code of AL: Title 30, Chapter 2 - Divorce and Alimony

    Text of Alabama Divorce and Alimony Code from Alabama Legislative Information System Online (ALISON).

  • Code of AL: Title 30, Chapter 3 - Child Custody and Support

    Text of Alabama Child Custody and Support Code from Alabama Legislative Information System Online (ALISON).

  • Custody Forms

    Instructions and forms for child custody provided by the Alabama State Bar Committee on Pro Se Forms, and Alabama UJS forms from the Alabama Office of Courts.

  • Divorce Forms

    Instructions and divorce forms provided by the Alabama State Bar Committee on Pro Se Forms, and Alabama UJS forms from the Alabama Office of Courts.

  • Rule 32 of the Alabama Rules of Judicial Administration

    Text of Rule 32 - Child Support Guidelines from the Alabama Supreme Court and State Law Library.

  • Rule 32.1 of the Alabama Rules of Judicial Administration

    Rule 32.1 - Child Support Information Sheet from the Alabama Supreme Court and State Law Library.

  • Visitation Forms

    Instructions and forms for visitation provided by the Alabama State Bar Committee on Pro Se Forms, and Alabama UJS forms from the Alabama Office of Courts.


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