This information is provided to answer some of your questions about divorce, child custody, and child support in Alabama. We always encourage attempts at reconciliation, and will recommend marriage counselors at your request.
 Divorce v. Legal Separation
In some instances a couple with marriage 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 divorce from bed and board, commonly called a "legal separation", the parties remain married after the legal proceedings. As in a divorce, a legal separation considers custody of the children, child support, alimony and property use or division. During the legal separation, either party can sue for a divorce on one or more grounds cited below.
Residency
There is a residency requirement which 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 resides 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. There are limited exceptions which may apply if you do not qualify under these rules.
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 at trial. Most divorces can be obtained on "no-fault" grounds.
Divorce Proceedings
Divorce proceedings may consist of several events and phases: fact-gathering, attempts to achieve an uncontested divorce, filing the complaint, information gathering from your spouse, records and witnesses, settlement negotiations, and the trial.
Uncontested Divorce
An uncontested divorce can often be obtained quickly and at less expense than a contested divorce. It can only occur when both parties agree to all of the terms of the divorce. It is often therapeutic, and much less stressful, for parties to work out a divorce agreement. Disputes over child custody, child support, visitation rights, alimony, or property division will prohibit an uncontested divorce. Since we can ethically represent only one party, we will tell your spouse of this fact and that it may be in his or her best interest to hire a lawyer.
Starting the Proceeding
A divorce case begins with the filing of a complaint in the Circuit Court. Costs vary among the counties, but generally the filing fee is approximately $150.00. 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.
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. To avoid the embarrassment often associated with being served by the sheriff, the defendant may sign a waiver acknowledging receipt of a copy of the complaint. If your spouse has a lawyer, your spouse may authorize the lawyer to accept service. In some cases service may be achieved by publishing notice in a newspaper.
Separation
The law does not require the parties to be physically separated and living apart on filing the divorce complaint. However, some judges may require it.
Child Custody
In determining which parent is to have custody, Alabama courts look to the "best interests of the child" and seek to determine which parent is most fit. Regardless of which parent is granted physical custody, the other parent will be granted reasonable visitation rights, except in extreme circumstances. Joint custody may be an alternative.
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. The amount of child support depends on the income of the parties and the needs of the children. The law only requires support of a child until the child's 19th birthday or until the child becomes self-supporting, whichever occurs first. If special needs are present, such as for a retarded child, child support can be extended past age 19.
Visitation
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 p.m. until Sunday at 6 p.m., one month during the summer vacation, one week each Christmas to include Christmas Day on alternate years, alternate spring vacation, Thanksgiving, and Easter, Mother's Day and Father's Day, and on the spouse's birthday"). Special visitation rights may be awarded if the parents do not live close to one another.
Alimony
Alimony is the money paid by one spouse to the other in recognition of the duty to support and maintain the other spouse. It is available in Alabama. The amount and duration of alimony awarded is different in every case. Some of the factors considered by the judge in awarding alimony are: length of the marriage, ages of the parties, assets and liabilities, income, earning capabilities, the degree of fault of the parties in causing the divorce, stations in life, and health.
Property Division
There is no formula for determining how the property (land, money, automobiles, household goods, etc.) will be divided. Alabama judges are required to make an "equitable division" of the marital property. An equitable division means a "fair" division, not an "equal" one. Marital property is generally that property acquired during the marriage. Property brought into the marriage and property which is inherited is not considered marital property unless it has been used regularly in the marriage. If the parties can reach a reasonable agreement, the judge will generally approve it. Otherwise, the judge will make a decision 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.
Temporary Relief
Under certain conditions the judge may give temporary relief before the divorce is finalized. In certain circumstances, the judge may prohibit any party from harming or harassing his or her spouse, and from selling property belonging to the parties. 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.
Changing the Wife's Name
The wife may legally change her name through the divorce proceedings to resume the use of her maiden name or name by a previous marriage. The children will retain the name of their father.
Reconciliation
We have an ethical obligation to explore the possibility of reconciliation between you and your spouse. Before or after the divorce is filed, you may change your minds and try to work out your marital problems. Our policy is to encourage such efforts. The divorce proceedings can be dropped at any time of your choosing. We will recommend marriage counselors at your request.
Settlement v. Trial
Usually the final proceeding in a divorce action is the trial. Although it will vary among the counties, you can expect a trial approximately sixth 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 is 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.
When the Divorce is Final
A divorce is final on the day the judge signs the decree or judgment. By law, the judge cannot sign the decree until 30 days have elapsed from the filing of the divorce complaint. 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 within forty-two (42) days, the parties cannot remarry until the appeal has been resolved.
Our Professional Services
In a divorce action, there is no "winner". Rarely will either spouse emerge the victor. Our services for you will consist of trying to obtain the most favorable solution for you at a reasonable cost. In performing legal work for you we provide competent staff support, as well as modern equipment and research facilities. 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.
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