Divorce in Alabama

Residency Requirements and Grounds for Divorce

Residency Requirements and Grounds for Divorce

Either you or your spouse must be a resident of Alabama for at least six months to file for a divorce. If your spouse does not live in Alabama, you may still file as long as you have lived in Alabama for at least 6 months.

The legal process of obtaining a divorce begins by filing a complaint or summons with the court. The divorce may be filed for in any of the following:

the county where the defendant resides
the county where the spouses both resided at the time of their separation
the county where the plaintiff resides if the defendant is a non-resident of Alabama

A divorce may be granted in Alabama for any of the following grounds:

physical and incurable incapacitation at time of marriage
adultery
voluntary abandonment for one year
imprisonment for two years
crime against nature
drug or alcohol addiction
complete incompatibility of temperament
confinement to a mental hospital for five years with no hope of recovery
irretrievable breakdown of marriage
if the wife was pregnant at the time of the marriage, unbeknownst to the husband
physical abuse
living separate and apart for two years without support

Dividing the Property

In Alabama, assets and debts acquired during your marriage - called "marital property" - will be divided "equitably" when you divorce. An equitable division means that the division of property and debts between the divorcing parties should be fair and equitable, but not necessarily equal. There is no fixed standard to divide property, each case will be decided on its own facts and circumstances.

But not all property is considered "marital property":

For example, assets you had before you married may be considered non-marital or "separate property" if you kept that property separated from property acquired during the marriage
The income produced by a separate property investment may also be non-marital property, as long as it hasn't been "commingled" - mixed together with marital property
Property you inherit from your family during your marriage will generally be considered your own separate property if it was willed exclusively to you and you did not commingle it with marital property during the marriage

In deciding how to divide the property owned by divorcing couples, judges will consider a number of factors, including:

The length of the marriage
Any prior marriage of either party
The age, health, station, income, vocational skills, employability, estates, liabilities and needs of each party
The contribution by one party to the education, training or increased earning power of the other party
The opportunity of the parties to acquire future income and assets
Sources of income, including medical, retirement, insurance or other benefits
The services of each party as a parent, wage earner or homemaker
The value of the property set apart to each party
The standard of living the parties established during the marriage
The tax consequences of the distribution
With whom the children will reside the majority of the time

It is important to collect all the information you can about all your property, including when you purchased it, approximately how much it is worth, and details such as account numbers, serial numbers and so forth. Collecting this information before you see an Alabama divorce lawyer can save you a lot of time and money.

Alimony

A court can order alimony, as it deems reasonable, to either party in Alabama, but only if it finds that alimony is necessary. Such awards typically are not permanent. Alimony is usually reserved for situations where one spouse has been economically dependent on the other for most of a lengthy marriage. In deciding whether to award alimony, a court will generally consider such factors as:

The relative earnings and earning capacities of the parties
The ages and health of the parties
Sources of income, including medical, retirement, insurance or other benefits
The expectancies and inheritances of the parties
The length of the marriage
The contribution by one party to the education, training or increased earning power of the other party
The extent to which a party"s earning power, expense or financial obligations will be affected by serving as the custodian of a minor child
The standard of living the parties established during the marriage
The relative education of the parties and the time necessary to acquire sufficient education or training to enable the party seeking alimony to find appropriate employment
The relative assets and liabilities of the parties
The property brought into the marriage by either party
The contribution of a spouse as homemaker
The relative needs of the parties
The marital misconduct of either party during the marriage
Tax consequences to either party
Whether the party seeking alimony lacks sufficient property to provide for the party's reasonable needs
Whether the party seeking alimony is incapable of self-support

A court can order temporary maintenance while the divorce is pending. Most maintenance is ordered for a specific length of time. Once ordered, it can be modified only upon a showing of a "change in circumstances."

There is a possibility of rehabilitative alimony after shorter marriages. Rehabilitative alimony is the solution some courts apply when one of the spouses needs some time to transition back into the job market.

There is no formula for setting the amount of alimony; instead, the determination of alimony rests in the discretion of the trial court. Alimony is to be granted only on a showing of need by one party together with the requisite ability to pay by the other.

Child Custody and Visitation

In Alabama, the court will make child custody decisions solely based upon what is in the best interest and welfare of the child.

In making a custody decision, the court will consider several factors:

Sex and age of each child
The emotional, social, moral, material and educational needs of each child
The respective home environments offered by each party
The characteristics of each party seeking custody, including age, character, stability, mental and physical health
The capacity and interest of each parent to provide for the emotional, social, moral, material and educational needs of the children
The interpersonal relationship between each child and each parent
The interpersonal relationship between the children
The effect on the child of disrupting or continuing an existing custodial status
The preference of each child, if the child is of sufficient age and maturity
The report and recommendation of any expert witnesses or other independent investigator
Available alternatives
Any other relevant matter the evidence may disclose

The court may award either "sole custody" or "joint custody" if it is in the best interest of the child. "Sole custody" means one parent makes all the key decisions affecting the child, and it means that the child lives with one parent. "Joint custody" means both "Joint Legal" custody and "Joint Physical" custody.

After the custody order is signed by the judge and filed with the court clerk, both parents are bound by it. If a parent is denied court-ordered access to a child, he or she may bring the issue back before the court by filing a "Petition for Modification." If it is in the best interest of the child, the judge may decide to modify the visitation order, order makeup visitation for the time missed and order counseling or mediation.

Trial courts have broad latitude in providing for visitation rights. Whether courts provide for a specific schedule or something as general as the right to visit the children and have them visit the noncustodial parent at reasonable times and places commensurate with the children's health, education, and welfare is within the court's discretion.

Courts have discretion to provide for visitation rights, even if both parents had previously agreed to no visitation. Where one parent interferes with the orderly visitation schedule, the court may by statute require that parent to post a performance bond to guarantee compliance with the court's orders.

Alabama has a statute governing relocation, which requires a custodial parent who's contemplating moving away to give notice to the noncustodial parent. The noncustodial parent has the right o object to the move and to schedule a hearing. The statute creates a presumption in most cases that move is not in the best interest of the child.

Child Support

In Alabama, child support is based on the combined net income of the parents and how many children the parent is responsible for supporting. When making a decision about child support, the court must determine the ability of each parent to provide health-care coverage for the children. If necessary, a court can set aside a portion of joint or separate assets of the parties in a separate trust or fund for the support and education of the parties' children.

An Alabama child support order can be modified if there has been a substantial change in circumstances, such as a big increase or decrease in either parent's income or the child reaching the legal age of majority and graduating from high school.

Child support is one of the few things in divorce that is relatively certain. For the majority of divorces involving minor children, child support is a straightforward application of a formula that is entirely a creature of statute, and most anyone can do the calculation easily. Alabama uses a model called "income shares" to figure child support. The formula turns on the following factors:

The combined gross income of the mother and the father
Each parent's gross income as a percentage of the combined gross income
Any pre-existing obligation to pay child support or alimony
The number of children under 19
The amount paid for work-related child care, subject to some limitations provided by the state Department of Human Resources
The amount paid for health insurance for the children, and the party responsible for paying it

Either parent can force child support to be recalculated at any time, but change will occur only if the recalculation results in a change in the calculated child support of 10% or more. The way to force the recalculation is to file a Petition to Modify, which requires payment of the filing fee applicable in the county where the petition is filed.

The child support guidelines are mandatory, and the trial court may deviate from them only where the parties have entered a fair, written agreement establishing a different amount of support and stating the reasons why the deviation is necessary. A trial court may also deviate from the child support guidelines upon a written finding on the record that the application of the guidelines would be manifestly unjust or inequitable.

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