Divorce Law
RESIDENCY REQUIREMENTS:
To obtain a divorce in Alabama, the court must have proper jurisdiction. To meet that requirement, at least one party must be a bona fide resident of the State of Alabama for six (6) months before the filing of the complaint. [Based on Alabama State Code – Section 30-2-5]
LEGAL GROUNDS FOR DIVORCE:
The Circuit Court has power to grant a divorce for “fault” or “no-fault” grounds. A divorce can be entered on no-fault grounds such as incompatibility of temperament or an irretrievable breakdown of the marriage. A divorce can also be entered based on fault grounds, such as: lack of capacity, adultery, abandonment, imprisonment, crimes against nature, alcoholism or habitual use of intoxicating drugs, and domestic violence. A Complaint for divorce must allege one or more grounds for divorce, which the person who files for divorce must prove through testimony. We will go over these issues with you to determine which grounds to use when filing for divorce. [Based on Alabama State Code – Section 30-2-1]
TYPES OF DIVORCE:
Generally, you can have an “uncontested” or a “contested” divorce action. In an uncontested divorce, you and your spouse agree to all of the terms necessary to obtain a divorce. Once you have agreed to the terms, you will both sign the written agreement and several other necessary legal documents. You will submit all of the signed paperwork together with a filing fee. Neither of you will need to appear in court or before a judge. Your divorce will be finalized by the Court in approximately thirty (30) days from the date you file it – as of the date of the Judge’s signature on your decree, or the effective date, whichever is later.
In a contested divorce action, the process is more complex, and typically far more expensive. Either party can initiate a divorce by filing a Complaint for divorce with the Circuit Court. The filing party is called the Plaintiff. The Complaint sets out the basic facts, allegations, and requested relief of the Plaintiff. The Complaint must then be served on the other party (the Defendant) by one of several different methods. In Madison County, the court has a series of orders (Standing Pendente Lite Orders) that are almost always entered automatically in each divorce action. These orders can be reviewed under the Family Court section of the following link: http://23judicialcircuit.org/standingorders.html.
After being served, the Defendant will have thirty (30) days to file an Answer to the allegations Complaint. That Answer will typically include a Counterclaim for Divorce where the Defendant details their own allegations and requested relief. The amount of time between the filing of a Complaint and the case being set for trial can vary tremendously from a few months to two (2) years. After the case is initiated, we will typically send the other side a series of questions and documents to respond to and provide, work to negotiate a settlement, and handle any emergency issues that may arise. After a signed settlement agreement or a trial, the final decree will be signed by the judge. You will be divorced as of the date of the Judge’s signature on your decree, or the effective date, whichever is later.
After being served, the Defendant will have thirty (30) days to file an Answer to the allegations Complaint. That Answer will typically include a Counterclaim for Divorce where the Defendant details their own allegations and requested relief. The amount of time between the filing of a Complaint and the case being set for trial can vary tremendously from a few months to two (2) years. After the case is initiated, we will typically send the other side a series of questions and documents to respond to and provide, work to negotiate a settlement, and handle any emergency issues that may arise. After a signed settlement agreement or a trial, the final decree will be signed by the judge. You will be divorced as of the date of the Judge’s signature on your decree, or the effective date, whichever is later.
PROPERTY DIVISION:
Alabama is an equitable distribution state, meaning that if the parties cannot agree, marital property will be distributed in an equitable or “fair” fashion, but not necessarily equally. Generally, property that was owned prior to marriage, inherited, or received as a gift is only subject to division in a divorce if it was used for the common benefit of the marriage. Most other types of property are considered marital and are subject to equitable division by the Court. The types of assets that the court can divide include but are not limited to houses and other land, motor vehicles, retirement accounts, bank accounts, business interests, stocks and bonds, furniture and furnishings, life insurance, and other personal belongings. In dividing property, the court considers a number of factors, including any fault that contributed to the breakdown of the marriage, the assets, debts, and earning capacity of the parties, the length of marriage, etc.
Alimony or spousal support can be awarded to either spouse. Contrary to popular belief, there is no set calculation or formula to arrive at an amount or term of alimony. The award of alimony is based on factors such as length of marriage, age of parties, earning capacity of parties, access to other assets, fault, health, education, and work experience. Alimony may not be awarded at all, it can be reserved for a future court order, it may be awarded for a term of months, or it may be awarded permanently (or until either of the parties die or the recipient remarries or openly lives with a member of the opposite sex).
Alimony or spousal support can be awarded to either spouse. Contrary to popular belief, there is no set calculation or formula to arrive at an amount or term of alimony. The award of alimony is based on factors such as length of marriage, age of parties, earning capacity of parties, access to other assets, fault, health, education, and work experience. Alimony may not be awarded at all, it can be reserved for a future court order, it may be awarded for a term of months, or it may be awarded permanently (or until either of the parties die or the recipient remarries or openly lives with a member of the opposite sex).
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 marital status of the parties. The court shall enter a decree of legal separation if all of the following requirements are satisfied: (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 exists a complete incompatibility of temperament or one or both of the parties desires to live separate and apart. (3) To the extent that it has jurisdiction to do so, 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. [Based on Alabama State Code – Section 30-2-40]
The decision to obtain a legal separation instead of a divorce raises a number of complex issues and various on you specific situation. To learn whether a legal separation is the right option for you, please contact our office for an analysis of the pros and cons of a legal separation versus a divorce.
The decision to obtain a legal separation instead of a divorce raises a number of complex issues and various on you specific situation. To learn whether a legal separation is the right option for you, please contact our office for an analysis of the pros and cons of a legal separation versus a divorce.
With years of experience in this type of matter, we can help you successfully resolve one of life’s most unpleasant trials.
No representation is made that the quality of the legal services to be performed is greater than the quality of legal services performed by other lawyers.