• Residency Requirements and Grounds for Divorce

  • Dividing the Property

  • Alimony

  • Child Custody and Visitation

  • Child Support

    Residency Requirements and Grounds for Divorce

    Either you or your spouse must be an Alabama resident for at least six months to file for a divorce. If your spouse doesn't live in the State, you may still file as long as you've been a resident for six months.

    A divorce case begins by filing a complaint or summons with the court. You can file in the county where:

  • The defendant resides
  • You and your spouse resided when you separated
  • Where you, the plaintiff, resides, if your spouse isn't an Alabama resident

    Grounds or the basis for divorce include:

    1. Physical and incurable incapacitation at time of marriage
    2. Adultery
    3. Voluntary abandonment for one year
    4. Imprisonment for two years
    5. Crime against nature
    6. Drug or alcohol addiction
    7. Complete incompatibility of temperament
    8. Confinement to a mental hospital for five years with no hope of recovery
    9. Irretrievable breakdown of marriage
    10. If the wife was pregnant at the time of the marriage, unbeknownst to the husband
    11. Physical abuse
    12. Living separate and apart for two years without support

      Dividing the Property

      In Alabama, assets and debts acquired during your marriage - called "marital property" - are divided "equitably" in a divorce. Equitable division means a fair division, but it might not be equal. There's no fixed standard to divide property; every case is based on its facts and circumstances.

      But not all property is considered "marital property":

      1. Assets you had before marriage may be non-marital or "separate property" if you kept it separate from marital property
      2. Income from separate property investments may also be non-marital property, if not "commingled" or mixed with marital property
      3. Inheritance from your family during your marriage is generally your separate property if left to you alone, and there's no commingling

          Judges consider a number of factors in deciding these issues, including:

          1. Marriage length
          2. Prior marriages
          3. Age, health, station, income, vocational skills, employability, estates, liabilities and needs of each party
          4. Contribution by one party to the education, training or increased earning power of the other party
          5. Parties' chances for future income and assets
          6. Sources of income, including medical, retirement, insurance or other benefits
          7. Services of each party as a parent, wage earner or homemaker
          8. Value of the property set apart to each party
          9. Standard of living the parties had during the marriage
          10. Tax consequences of the distribution
          11. Living arrangements for the parties' children

            12. Be prepared with information on your property, including when you purchased it, an estimate of value, and details such as account numbers, serial numbers and so forth. You'll be ready to meet with an Alabama divorce lawyer and it can save you a lot of time and money.

            Alimony

            A court can order alimony, but only if it's needed. Awards usually aren't permanent. Courts grant alimony typically where one spouse has depended on the other for support in a long-term marriage. Courts look at these factors in granting alimony:

            1. Parties' relative earnings and earning capacities
            2. Parties' ages and health
            3. Sources of income, including medical, retirement, insurance or other benefits
            4. The expectancies and inheritances of the parties
            5. Marriage length 
            6. Contribution by one party to the education, training or increased earning power of the other party
            7. The extent to which a party's earning power, expense or financial obligations is affected when he or she has custody of a minor child
            8. Standard of living during marriage 
            9. Parties' relative educations and the time and resources needed for the spouse receiving alimony to gain education and training to return to work 
            10. Parties' relative assets and liabilities 
            11. The property brought into the marriage by either party
            12. A spouse's contribution in homemaking 
            13. Needs of each party 
            14. Marital misconduct 
            15. Tax consequences to either party  

            A court can order temporary maintenance while the divorce is pending. Most maintenance is ordered for a specific time length. Once ordered, showing of a "change in circumstances" is needed for modification. 

            Rehabilitative alimony may be awarded after shorter marriages. Some courts use this alimony type when a spouse needs some time and resources to transition back into the job market. is the solution some courts apply when one of the spouses needs some time to transition back into the job market.

            There's no formula for setting the amount of alimony; the determination of alimony rests in the discretion of the trial court. Alimony is granted only when one spouse shows need and the other has the ability to pay. 

            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:

            1. Sex and age of each child
            2. The emotional, social, moral, material and educational needs of each child
            3. The respective home environments offered by each party
            4. The characteristics of each party seeking custody, including age, character, stability, mental and physical health
            5. The capacity and interest of each parent to provide for the emotional, social, moral, material and educational needs of the children
            6. The interpersonal relationship between each child and each parent
            7. The interpersonal relationship between the children
            8. The effect on the child of disrupting or continuing an existing custodial status
            9. The preference of each child, if the child is of sufficient age and maturity
            10. Expert witnesses or independent investigator reports and recommendations
            11. Available alternatives
            12. Other evidence from your case 

            The court may award either "sole custody" or "joint custody." "Sole custody" means one parent makes all the key decisions affecting the child, and the child lives with one parent. "Joint custody" covers both "Joint Legal" custody and "Joint Physical" custody. Joint custody is the preference under state law.

            After the custody order is signed by the judge and filed with the court clerk, both parents are bound by it. A "Petition for Modification" is used to change a custody or visitation order, for example, if a custodial parent doesn't follow visitation terms. A court could grant relief by ordering a make up visit, changing the visitation 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. Arrangements can vary from a set schedule to a general order for visits at reasonable times and places.

            Alabama has a statute governing relocation. A custodial parent who's thinking about moving away must give notice to the noncustodial parent, who has the right to object to the move and to schedule a hearing on the issue. The law presumes in most cases a move isn't 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 each must support. Child support guidelines provide a schedule as the starting point for calculating support.

            Child support is one of the few things in divorce that is relatively certain. In most cases, child support is a straightforward application of the guidelines, and most anyone can figure the amount. Alabama uses a model called "income shares" to figure child support. The formula turns on these factors:

            1. Parents' combined gross income 
            2. Each parent's gross income as a percentage of the combined gross income
            3. Any pre-existing obligation to pay child support or alimony
            4. The number of children under 19
            5. The amount paid for work-related child care, subject to some limitations provided by the state Department of Human Resources
            6. Health insurance costs for the children, and who pays for it

            Either parent can seek a change in the support amount, but you must claim and prove there's been a substantial and continuing change since the last support order. A recent change to state support guidelines means a parent doesn't need to show the support amount would change by 10 percent or more. Start the process by filing a "Petition to Modify," and paying the filing fee to the county court. 

            The child support guidelines are mandatory, and the trial court may deviate from them only where the parties have entered a fair, written agreement for a different amount of support and stating the reasons why. A trial court judge's deviation needs a written finding on the record that using the guidelines would be manifestly unjust or unfair. 

            Questions for Your Attorney

            • What are alternatives to a court case for divorce in our area? Are mediation or collaborative divorce an option?
            • What are the issues if my spouse won't cooperate or get his own lawyer? Can the court force a spouse to get legal help?
            • How long will my case take before the divorce is final?