In Alabama, both fault and no-fault divorce are possible, and knowing the grounds for each type is important to make the best filing decisions.
Asset and Debt Division
- ADR Available: Yes
- Fault or No Fault: Both
- Parenting Plan Required: Yes
- Property Distribution: Equitable
Grounds For Divorce
Couples that are divorcing in Alabama can pursue a no-fault or fault divorce by meeting the respective grounds that apply to each form. A judge will grant a no-fault divorce when a couple can substantiate one of the following grounds:
- Incompatibility of temperament, making it impossible for parties to live together
- Irretrievable breakdown of the marriage and reconciliation is unsuccessful
- Voluntary separation for at least one year prior to filing a divorce petition
The grounds for fault divorce in Alabama are:
- Incapacitation from entering into the marriage state
- Deviant sexual behavior
- Abandonment for at least one year
- Habitual drunkenness or illegal drug use
- Incurable insanity for five consecutive years
- Pregnancy of the wife by a man not her husband
- Domestic abuse
A lawyer can explain the reasons seeking a fault divorce could offer you an advantage in the contested areas of child custody, alimony and property division.
The Divorce Process In Alabama
The person that files for divorce is called the plaintiff in Alabama, while the other spouse is named the defendant. The common areas that need to be addressed when ending a marriage are:
• Child custody
• Child support
• Spousal support
• Property division
When couples can agree on all issues, the process is called an uncontested divorce. If, however, the parties are in disagreement, on one or many issues, it’s a contested divorce and a trial is likely required.
When one party doesn’t want the divorce or has no interest in participating in the legal process, a default proceeding can be pursued. In this process, the other spouse doesn’t participate or show up in court. When this happens, all requests made by the present spouse are typically awarded.
Divorce Waiting Period
There is a 30-day waiting period from the time the divorce is filed to when a decree can be finalized. In order to file for divorce in Alabama, one person must have resided in the state for at least six months. For military members, one spouse must reside or be stationed in Alabama for at least six months.
Not every couple may decide that a divorce is the right path for them. Choosing a course will depend on the circumstances within each situation and the goals of the parties involved. In Alabama, spouses may opt for a legal separation or file an annulment.
In order to file for legal separation in Alabama, one or both parties must be a resident of the state. In addition, individuals must show the court that the marriage has been irretrievably broken, or that it is impossible to live with the other person due to incompatibility. While a legal separation resolves property division, child custody and spousal support, this civil action doesn’t dissolve the marriage.
If couples want to reconcile the marriage, a legal separation can be terminated with the consent of both parties. Alternatively, a legal separation can be incorporated into the divorce agreement if parties want to proceed with officially ending the marriage.
An annulment is a way to end a marriage that will treat the union as though it never legally occurred. Specific grounds must exist in order to get an annulled marriage. In Alabama, a court will accept the following as eligible reasons to nullify a marriage:
- A person was forced into the marriage.
- A person was underage.
- A person committed fraud when entering into the marriage.
- The parties are closely related.
- A person lacked the mental capacity to agree to the marriage.
- A person was already legally married.
In the instances of incest or bigamy, an Alabama marriage is never legal. The court treats annulment under either of these grounds as a “void” union. For the other conditions to nullify, ample proof is required and in some cases, extensive investigative work.
Child Custody Determinations
For couples with children, one of the most emotional parts of a divorce is the issue of custody. To ease the transition for children, parents can work together to write a parenting plan. In this official document, caregivers reach agreements on all matters relating to the children. The best scenario is one in which parents can agree with one another, rather than have an Alabama judge determine matters.
Some of the specific issues that should be addressed in a parenting plan include:
- The education of the child
- The health care of the child
- Visitation schedules identifying holiday and summer parenting time
- Extracurricular activities of the child
- Community involvement for the child
- Anything else that affects the physical or emotional welfare of the child
There are four possible custody arrangements in an Alabama divorce, including:
- Legal sole custody, which grants one caregiver the right to make important life decisions concerning the children
- Legal joint custody, which gives both parents the authority to be decision makers on such issues as education, religion or community preferences of the children
- Physical sole custody, which allows only one parent to live with the children
- Physical joint custody, which defines the residence of the children
All custody determinations are made according to the welfare of the children. If a parent is found to have an unhealthy lifestyle due to drugs, alcohol or unlawful behavior custody will be denied.
Sharing parenting time can be an adjustment for the whole family. Visitation, or parenting time, is granted to the noncustodial parent and generally works on a routine schedule. Making sure children know the specific days they will see each parent can help diminish uncertainty from the divorce. The schedule will be determined by the parents and is often aligned with each caregiver’s work routine.
The visitation schedule is part of the required parenting plan that spouses must draft during the divorce proceeding. Once this arrangement is chosen, it remains the same, unless parents opt for a flexible visitation schedule.
Visitation rights for grandparents can be a complex issue in Alabama. The courts will make all rulings based on the circumstances of the family and what is in the best interests of the children. Grandparents that want to seek time with grandchildren should enlist the help of an experienced attorney. A lawyer can offer valuable information on the proper steps to obtain visitation with grandchildren.
The court system in Alabama maintains the position that both parents are legally obligated to provide financial support for their children. In support calculations, the payments often reflect the fact that children deserve to maintain the same standard of living as if the family had remained intact. The court has discretion in the amount a parent will pay and can lower or increase the payments as needed. Some of the factors determining child support are:
- The number of children
- The gross monthly income of each parent
- The amount of child support for dependents from other marriages
- The amount of spousal support
The court will assess other criteria, such as health insurance costs for children, the financial situation of each parent and daycare expenses.
Child Support Enforcement
The state of Alabama enforces the payment of child support. If a parent falls behind on child support or stops paying altogether, state and federal measures are in place to retrieve payments that are owed. Some of the consequences of failing to make support payments include:
- Passport denial
- Civil contempt
- Revocation of driver’s, professional and recreational licenses
- Property liens
- Credit bureau reporting
- Bank account levees
- Income withholding
If a parent owes at least $1,000 in back child support, the state can place a lien on property. The debt must be paid before the property can be sold or refinanced.
Establishing paternity of children is important in order for a father to legally have parenting time with dependents. A father can enrich the lives of his children by offering guidance, emotional and financial support. Knowing medical history of both sides of the family can help children overcome potentially life-threatening health situations.
Paternity gives fathers certain privileges, such as helping to make important choices regarding the children. Dependents can have more stability and perhaps experience a greater sense of family community with the presence of both parents.
In Alabama, property is dispersed under equitable distribution laws. This means that all debt and assets that are deemed marital property will be divided between spouses in a fair and reasonable fashion. However, the distribution of items may not be split evenly between each party. Some of the items that are typically exempt from division in the dissolution of marriage include:
- Items protected under a prenuptial or postnuptial agreement
- Property owned before the marriage
- Property considered a gift or inheritance
The court has discretion in property division matters. If separate property has been used to benefit both spouses, the court might make an exception and divide such items.
Division Of Property
If spouses can agree on property division, rather than go to court on the issue, the process will be easier and parties will be in more control over the result. Some of the debts and assets typically allocated are:
- Real estate
- Business investments
- Household items and furnishings
- Retirement assets
- Stocks, bonds, 401(k)s and similar accounts
- Collectibles items, such as cars or baseball cards
- Bank accounts, stocks and bonds
- Credit card debt and loans
Because the outcome of property division can impact your financial welfare, it’s wise to enlist the services of an attorney to avoid any potential oversights.
Alimony provides financial support to an individual after a divorce. Payments to a former spouse can be required on a temporary or permanent basis. The courts in Alabama will assess the factors of each case to rule on whether alimony should be paid. The criteria a judge will use when determining alimony are:
- The age and health of each spouse
- The standard of living during the marriage
- The contribution of each person to the marriage
- The earning capacity of each spouse
- The conduct of each party in the marriage
There isn’t a set formula established by the court to determine alimony or what assets can be used. For example, the court may consider vested retirement accounts as a source of income for alimony if the marriage lasted for a significant time period.
Prenuptial and Postnuptial Agreements
A divorce can create financial instability. Prenuptial and postnuptial agreements serve as planning tools in the event of death or divorce. Having a prenuptial or postnuptial agreement in place can offer individuals the ability to protect intended beneficiaries and investments. Other benefits of a prenuptial or postnuptial agreement include safeguarding a family business from allocation and giving spouses confidence over property matters.
Changes in life can happen abruptly, making it necessary to amend the original divorce contracts. Some of the modifications may involve the amount of alimony or child support payments to which an individual is obligated. In the case that a couple has signed a written agreement declaring neither party will seek a modification in a specified area, amendments are possible. Some of the common reasons to alter a divorce settlement include:
- Loss of employment
- Job relocation
- A significant pay cut
- A debilitating injury
- Filing for bankruptcy
The issues of child custody, visitation and alimony can be impacted by any of these events and warrant an amendment to previously established contracts.