Divorce – State FAQ – Alabama
Residency requirements, venue and procedures
How long must I have lived in Alabama prior to filing for divorce in an Alabama court?
A: When the defendant is a non-resident of Alabama, the other party to the marriage must have been a bona fide resident of Alabama for six months prior to the filing of the divorce action. This must be alleged in the complaint for divorce and proven.
Q: What are the terms used to identify the parties in a divorce proceeding?
A: The party who files the action is the Plaintiff, and the other party to the action is the Defendant.
Q: What is “venue,” and what is the proper venue for a divorce case?
A: “Venue” refers to which type of court and in what locality the case is filed. In Alabama, proper venue for the divorce action is the Circuit Court of the county in which the defendant resides, or in the Circuit Court of the county in which the parties resided when the separation occurred. If the defendant is a non-resident of Alabama, then the action must be filed in the circuit court in which the other party to the marriage resides. The title of the action initiating the action for divorce is the Complaint for Divorce.
Q: What is the title of the document initiating the action for divorce? The order granting the divorce?
A: The title of the action initiating the action for divorce is the Complaint for Divorce, while the title of the action granting the divorce is referred to as the Judgment of Divorce.
Q: Are there any waiting periods associated with a divorce action?
A: Alabama law requires that thirty (30) days elapse from the filing of the summons and complaint before a final judgment of divorce be entered. Alabama further requires that neither party to the divorce may remarry, except to each other, until sixty days after the judgment of divorce is entered. If the judgment of divorce is appealed, the parties may not remarry, except to each other, during the pendancy of the appeal.
Grounds for divorce
Q: What is meant by “grounds for divorce”?
A: A “ground” for divorce is a “reason” for divorce. A set of judicially recognized reasons for divorce exist in Alabama. You must use one or more of these reasons to justify your divorce.
Q: What are the recognized grounds for divorce in Alabama?
A: The grounds upon which Alabama law permits a judgment of divorce to be granted include:
1. When either party to the marriage, at the time of contract, was physically and incurably incapable of consummating the marriage.
2. For adultery.
3. For voluntary abandonment by either spouse for a period of one year prior to the filing of the complaint.
4. When either spouse is imprisoned for a felony conviction for a period of two years and the actual sentence is seven years or more.
5. The commission of crimes against nature, before or after the marriage.
6. Drug or alcohol addiction.
7. Complete incompatibility of temperament of the parties such that the parties can no longer live together.
8. Insanity, when the insane spouse has been committed to a mental institution for a period of five successive years and that spouse is hopelessly and incurably insane.
9. When there is an irretrievable breakdown of the marriage and any further attempts at reconciliation are impractical or futile and not in the best interests of the parties.
10. In favor of the husband, when the wife was pregnant at the time of marriage without the husband’s knowledge.
11. In favor of either party when the other has committed actual violence or placed the party in reasonable apprehension of such violence.
12. In favor of the wife when she has lived separate and apart from the husband without his support for two years prior to the filing of divorce, and she is a bona fide resident of Alabama.
Simplified divorce proceeding
Q: Is a simplified divorce proceeding provided for by Alabama law?
A: Although there is no simplified divorce proceeding in the State of Alabama, the defendant may file an answer and waiver of service of process, thereby dispensing with further service and notice issues in the proceeding.
Q: What does the term “spousal support” (or, “alimony”) mean?
A: “Spousal support” (sometimes called “alimony”) is money paid by one spouse to the other due to the payee spouse’s loss of the benefit of the payor spouse’s income due to the divorce.
Q: Is spousal support available while the divorce is pending in court, or only after the divorce has become final?
A: The court may order that one spouse support the other during the pendancy of the divorce action and/or after the divorce has become final. Support awarded pending the final decree of divorce is not to extend beyond the period of time necessary for the prosecution of the divorce action.
Q: What is the duration of alimony payments?
A: Unless otherwise agreed in writing, the obligation to pay alimony may be terminated upon petition of a party to the decree and proof that the spouse receiving such alimony has remarried or that such spouse is living openly or cohabiting with a member of the opposite sex.
Q: What factors will the court consider when determining how much alimony to award to a party?
A: If the divorce is in favor of either spouse for the misconduct of the other spouse, the judge trying the case shall have the right to order alimony to be paid to either spouse out of the estate of either spouse, or not make order for alimony, depending on the individual circumstances of the case. If alimony is ordered, the misconduct of either spouse may be considered in determining the amount. However, any property acquired prior to the marriage of the parties or by inheritance or gift may not be considered in determining the amount.
Q: On what basis does the court decide how marital property is divided?
A: Alabama is a so-called “equitable distribution” state. This means that the division of property and debts between the divorcing parties should be fair and equitable, but not necessarily equal. The trial court’s discretion will not be disturbed on appeal without a showing of clear abuse.
Q: Is the “separate property” of one spouse subject to being divided up?
A: The question here is whether property “belonging to” one of the parties should be included in the marital estate for purposes of an equitable division. Generally, separate property acquired before the marriage or by gift or inheritance during the marriage may be excluded from the marital estate if neither the property nor its income has been used for the common benefit of the parties during their marriage.
Q: What if the parties occasionally use an item of separate property (for example, silver table utensils inherited by the wife) for the benefit of both parties?
A: The property may be subject to division. Where the parties regularly use property acquired by one party before marriage for the common benefit of the parties, it is more likely to be available for consideration in dividing property. The frequency of use may be considered by the court in making the decision.
Custody and Visitation
Q: What is child custody and visitation?
A: “Child custody” refers to which parent will have legal custody of the child(ren), i.e. with whom the child(ren) will live. “Visitation” is the topic of the non custodial parent’s ability to visit/spend time with the child(ren).
Q: If the parents cannot agree on child custody and visitation issues, on what basis will the court decide?
A: The court shall determine the custody of any minor children of the marriage based upon the best interests of the child. In determining what is in the child’s best interest, the court may consider the age and sex of the child, as well as the ability, fitness, moral character, and judgment of the parents. In cases of abandonment of the husband by the wife, the husband will be awarded custody of the children after they are seven years of age, as long as he is deemed a suitable person to have such custody.
In determining whether joint custody is in the best interest of the child, the court shall consider the same factors considered in awarding sole legal and physical custody and all of the following factors:
(1) The agreement or lack of agreement of the parents on joint custody.
(2) The past and present ability of the parents to cooperate with each other and make decisions jointly.
(3) The ability of the parents to encourage the sharing of love, affection, and contact between the child and the other parent.
(4) Any history of or potential for child abuse, spouse abuse, or kidnapping.
(5) The geographic proximity of the parents to each other as this relates to the practical considerations of joint physical custody.
(b) The court may order a form of joint custody without the consent of both parents, when it is in the best interest of the child.
(c) If both parents request joint custody, the presumption is that joint custody is in the best interest of the child. Joint custody shall be granted in the final order of the court unless the court makes specific findings as to why joint custody is not granted.
Q: What is “child support”?
A: Child support is money paid by the non custodial parent to the custodial parent in order to meet the needs of the child(ren).
Q: To what should the parties look for guidance regarding amount of child support to be paid? What standard will the court use if the parties cannot agree?
A: Each party has a duty to support any minor children of the marriage. In cases whee the parties cannot agree on the amount of child support, the court will use statutory guidelines to determine child support based upon the income levels of the parents. The court may deviate from these guidelines if the parties agree to do so or it believes it is necessary in order to establish an order that is in the best interests of the children.