Residency requirements, venue and proceduresQ: How long must I have lived in Alabama prior to filing for divorce in an Alabama court?
A: As long as you and your spouse are residents of Alabama, you may you may utilize the Alabama court system to file for divorce.
Q: What if I am a resident of Alabama, but my spouse (the defendant) is not?
A: When the defendant is a non-resident of Alabama, the plaintiff (the person who files for divorce) must have been a bona fide resident of Alabama for six months prior to the filing of the divorce action. This must be alleged in the complaint for divorce and proven.
Q: What is "venue," and what is the proper venue for a divorce case?
A: "Venue" refers to which type of court and in what locality the case is filed. In Alabama, proper venue for the divorce action is the Circuit Court of the county in which the defendant resides, or in the Circuit Court of the county in which the parties resided when the separation occurred.
Q: Where is venue proper if the defendant does not live in Alabama?
A: If the defendant is a non-resident of Alabama, then the action must be filed in the Alabama Circuit Court in which the plaintiff resides.
Q: What is the title of the document initiating the action for divorce? The document granting the divorce?
A: The title of the document initiating the action for divorce is the "Complaint for Divorce," while the title of the action granting the divorce is referred to as the "Judgment of Divorce.
Q: What are the terms for the parties in a divorce proceeding?
A: The party who files the action is the Plaintiff, and the other party to the action is the Defendant.
Q: Are there any waiting periods associated with a divorce case?
A: Yes. Alabama law requires that thirty (30) days elapse from the filing of the summons and complaint before a final judgment of divorce be entered.
Q: How soon may I remarry after the judgment of divorce is entered in my case?
A: Neither party to the divorce may remarry, except to each other, until sixty (60) days after the judgment of divorce is entered.
Q: What if there is a lengthy appeal of the judgment of divorce? May I remarry 60 days into the pendency of the appeal?
A: No. If an appeal of the judgment of divorce is taken, the parties may not remarry, except to each other, until the appeal is completely resolved (this could be a year or more).
Grounds for divorce
Q: What is meant by "grounds for divorce"?
A: A "ground" for divorce is a "reason" for divorce. A set of judicially recognized reasons for divorce exist in Alabama. You must use one or more of these reasons to justify your divorce.
Q: What are the recognized grounds for divorce in Alabama?
A: The recognized grounds for divorce in Alabama include:
- 1. When either party to the marriage, at the time of contract, was physically and incurably incapable of consummating the marriage.
- 2. Adultery.
- 3. Voluntary abandonment by either spouse for a period of one year prior to the filing of the complaint.
- 4. When either spouse is imprisoned for a felony conviction for a period of two years and the actual sentence is seven years or more.
- 5. The commission of crimes against nature, before or after the marriage.
- 6. Drug or alcohol addiction.
- 7. Complete incompatibility of temperament of the parties such that the parties can no longer live together.
- 8. Insanity, when the insane spouse has been committed to a mental institution for a period of five successive years and that spouse is hopelessly and incurably insane.
- 9. When there is an irretrievable breakdown of the marriage and any further attempts at reconciliation are impractical or futile and not in the best interests of the parties.
- 10. (For the husband) when the wife was pregnant at the time of marriage without the husband's knowledge.
- 11. (For the victim) when the other has committed actual violence or placed the party in reasonable apprehension of such violence.
- 12. (For the wife) when she has lived separate and apart from the husband without his support for two years prior to the filing of divorce, and she is a bona fide resident of Alabama.
Q: What is the difference between "fault" and "no-fault" grounds for divorce, and how does this relate to "contested" and "uncontested" divorces?
A. There are two "no-fault" grounds for divorce in the list of grounds above, including (7.) "incompatibility of temperament," and (9.) "irretrievable breakdown." "No-fault" means that the fault of one of the parties in destroying the marriage is not an issue in the divorce. Spouses obtaining a no-fault divorce usually agree on all terms of the divorce (property division, child custody, etc.). This is known as an uncontested divorce. However, if the parties cannot agree on terms, the divorce is a "contested divorce." It is possible to agree to "no-fault" grounds, but still end up in a contested divorce due to disagreement about terms.
Q: How are disagreements in a contested divorce resolved?
A: The judge decides all issues on which the parties cannot agree. Normally the judge must also approve agreements between the parties to make sure they are not fundamentally unfair to one party.
Q: Can I use a USLF divorce package to fully resolve a contested divorce?
A: A contested divorce is beyond the scope of USLF's divorce packages. We highly recommend you obtain a local attorney to represent you in a contested divorce. However, the USLF divorce package may get you started and save you time and money (especially some of your attorney's fees) if your divorce ends up being a contested divorce.
Q: How long do the parties have to wait before either can remarry after the judgment for divorce has been entered?
A: Remarriage by either party is forbidden until 60 days have elapsed following the entering of a judgment for divorce, or if an appeal is filed, neither party shall remarry pending the appeal except to each other.
Q: What is "legal separation" and how does it differ from "divorce"?
A: Alabama provides that a party may file for legal separation from their spouse. Legal separation is a court determination of the parties rights and responsibilities arising out of the marital relationship. Legal separation does not terminate the marital relationship, the parties are still married!
Q: How does a couple obtain a legal separation?
A: To obtain a judgment of legal separation, the parties must meet the same jurisdictional requirements as required by an action for divorce. The court must also determine either: (1) that the bonds of matrimony have been irretrievably broken, (2) that there exists an incompatibility of temperament between the parties, or (3) that one or both of the parties desire to live separate and apart from the other spouse. In addition, if there are children of the marriage, the court must have considered, approved or provided for child custody and entered an order for child support.
Q: May the parties to a legal separation agree to get back together?
A: The legal separation may be revoked at any time by agreement of the parties. An agreed order of revocation must be signed by the judge. Once parties revoke the legal separation, they would have to repeat the whole process if they decided to legally separate again.
Q: What does the term "spousal support" (or, "alimony") mean?
A: "Spousal support" (sometimes called "alimony") is money paid by one spouse to the other due to the payee spouse's loss of the benefit of the payor spouse's income due to the divorce.
Q: Is spousal support available while the divorce is pending in court, or only after the divorce has become final?
A: The court may order that one spouse support the other during the pendancy of the divorce action and/or after the divorce has become final. Support awarded pending the final decree of divorce is not to extend beyond the period of time necessary for the prosecution of the divorce action.
Q: Does the issue of misconduct affect the award of support?
A: If the divorce is awarded based upon the misconduct of the other spouse, the court may consider that misconduct in making an award of support, but may not consider the separate property of the spouse in determining the amount.
Q: Can permanent spousal support ever be cut off?
A: Yes. Upon petition to the court, an award of spousal support hall terminate upon the submission of proof to the court that the party receiving alimony has remarried or is openly living/ cohabiting with a member of the opposite sex.
Q: On what basis does the court decide how marital property is divided?
A: Alabama is a so-called "equitable distribution" state. This 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 facts, and the trial court's discretion will not be disturbed on appeal without a showing of clear abuse.
Q: Is the "separate property" of one spouse subject to being divided up?
A: The question here is whether property "belonging to" one of the parties should be included in the marital estate for purposes of an equitable division. Generally, separate property acquired before the marriage or by gift or inheritance during the marriage may be excluded from the marital estate if neither the property nor its income has been used for the common benefit of the parties during their marriage.
Q: What if the parties occasionally use an item of separate property (for example, silver table utensils inherited by the wife) for the benefit of both parties?
A: The property may be subject to division. Where the parties regularly use property acquired by one party before marriage for he common benefit of the parties, it is available for consideration in dividing property. The frequency of use may be considered by the court in making the decision.
Child custody and visitation
Q: What is child custody and visitation?
A: "Child custody" refers to which parent will have legal custody of the child(ren), i.e. with whom the child(ren) will live. "Visitation" is the topic of the non custodial parent's ability to visit/spend time with the child(ren).
Q: If the parents cannot agree on child custody and visitation issues, on what basis will the court decide?
A: The court shall consider joint custody in every case, but will make its final decision as to the type of custody to be awarded based upon the best interests of the child. Because joint custody is presumed to be in the best interests of the child, if both parents request joint custody, joint custody shall be ordered unless the court makes a specific finding as to why it should not be.
Q: Can grandparents petition for visitation?
A: Grandparents may be awarded visitation privileges as long as it is within the best interests of the child and one of six enumerated conditions exist.
Q: What are the six enumerated conditions?
- A: (1) When one or both parents of the child are no longer living.
- (2) When the marriage of the parents of the child has been dissolved.
- (3) When a parent of the child has abandoned the minor.
- (4) When the child was born out of wedlock.
- (5) When the child is living with both biological parents, who are still married to each other whether or not there is a broken relationship between either or both parents of the minor and the grandparent and either or both parents have used their parental authority to prohibit a relationship between the child and the grandparent.
Q: What is "child support"?
A: Child support is money paid by the non custodial parent to the custodial parent in order to meet the needs of the child(ren).
Q: To what should the parties look for guidance regarding amount of child support to be paid? What standard will the court use if the parties cannot agree?
A: The Alabama Child Support Guidelines are the standard. Though the parents may agree to MORE than mandated by the Guidelines, the court will not normally approve any amount LESS than the Guidelines indicate. Link » Alabama Rule 32: Child Support Guidelines