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.
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.
A Complaint for Divorce may be filed in the circuit court of the county in which the Defendant (non-filing spouse) resides, 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.
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.
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.
The annulment process in Alabama is largely based on case law. Grounds for annulment include the following:
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.
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 spouse's estate if the following conditions are met.If the court finds that any of the covered spouse's 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 spouse's 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.
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:These factors were set by the Alabama Supreme Court's 1981 decision in Ex parte: Devine v. Devine
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.
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.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:Court costs for a legal separation may be assessed as in a dissolution of marriage, and may be taxed by the court accordingly.
*I understand that my data will be kept confidential and not offered to any third party.