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Alabama Divorce Laws
Residency and Filing Requirements:In order to file for a divorce in Alabama, residency requirements must be met for the court to accept the case. If the court discovers it does not have jurisdictional rights to hear the case it will not be accepted or it will eventually be dismissed. The requirements are as follows:
When the defendant is a nonresident, the other party to the marriage must have been a bona fide resident of this state for six months next before the filing of the complaint.
Complaints for divorce may be filed in 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, or if the defendant is a nonresident, then in the circuit court of the county in which the other party to the marriage resides. (Code of Alabama - Title 30 - Chapters: 2-4 and 2-5)
Grounds for Filing:The Complaint for Divorce must declare the appropriate Alabama grounds upon which the divorce is being sought. The appropriate lawful ground will be that which the parties agree upon and can substantiate, or that which the filing spouse desires to prove to the court. The divorce grounds are as follows:
The circuit court has power to divorce persons from the bonds of matrimony, for the causes following:
(1) Incompatibility of temperament that the parties can no longer live together.
(2) Irretrievable breakdown of the marriage and that further attempts at reconciliation are impractical or futile and not in the best interests of the parties or family.
(3) voluntary abandonment from bed and board for one year next preceding the filing of the complaint.
(1) A party being physically and incurably incapacitated from entering into the marriage state. (2) adultery. (3) Imprisonment in the penitentiary of this or any other state for two years, the sentence being for seven years or (4) habitual drunkenness or to habitual use of opium, morphine, cocaine or other like drug. (5) In favor of either party, when the other, after marriage, shall have been confined in a mental hospital for a period of five successive years, if such party from whom a divorce is sought is hopelessly and incurably insane at the time of the filing of the complaint; provided, however, that the superintendent of the mental hospital in which such person is confined shall make a certified statement, under oath, that it is his opinion and belief, after a complete and full study and examination of such person, that such person is hopelessly and incurably insane. (6) In favor of the husband, when the wife was pregnant at the time of marriage, without his knowledge or agency. (7) Domestic Violence or Abuse (8) In favor of the wife when the wife has lived, or shall have lived separate and apart from the bed and board of the husband for two years and without support from him for two years next preceding the filing of the complaint, and she has bona fide resided in this state during said period. (Code of Alabama - Title 30 - Chapters: 2-1 and 2-2)
Filing Spouse Title:Plaintiff. The Plaintiff is the spouse who initiates the filing procedure with the family law or domestic relations court.
Non-Filing Spouse Title:Defendant. The Defendant is the spouse who does not file the initial divorce papers, but rather receives them by service.
Court Name:In the Circuit Court for (__________) County, Alabama. This is the Alabama court where the divorce will be filed. The court will assign a case number and have jurisdictional rights to facilitate and grant the orders concerning, but not limited to: property and debt division, support, custody, and visitation. The name of the court is clearly represented at the top of all documents that are filed.
Primary Documents:Complaint for Divorce and Judgment of Divorce. These are the essential documents needed to start and finalize a divorce according to Alabama law. There are anywhere from ten to twenty other documents that may be required throughout the filing process. A few other documents that are typically filed during the process are: Marital Settlement Agreement, Schedule for Visitation/Parenting Time of Minor Children, Affidavit of Residency, Commission to Take Testimony, Affidavit Regarding the Children, and Answer, Waiver and Agreement for Taking Testimony.
Court Clerk's Title:County Clerk's Office of the Circuit Court. The clerk or the clerk's assistants will be the people managing your paperwork with the court. The clerk's office will keep the parties and the lawyers informed throughout the process in regards to additional paperwork that is needed, further requirements, and hearing dates and times.
Property Distribution:Since Alabama is an "equitable distribution" state, the marital property shall be divided in an equitable fashion. Equitable does not mean equal, but rather what is fair. The court will encourage the parties to reach a settlement on property and debt issues otherwise the court will declare the property award.
When the spouses do not stipulate to how their property is to be divided, the court will do so in an equitable fashion. The court will determine what property is marital and after putting a value on this property, it will distribute a portion to each spouse. The court does not have the right to distribute any separate property that was obtained before or during the marriage. The separate property is, but not limited to gifts and inheritances, unless these gifts and inheritances have been used to benefit both spouses as a married couple. Marital misconduct may be a consideration by the court when distributing the property. (Code of Alabama - Title 30)
Restoration or Name Change:The court may grant the wife the use of her former or maiden name upon divorce. (Code of Alabama - Title 30 - Chapters: 2-11)
Spousal Support:Not all cases involve support from one spouse to the other. The obligation of one spouse to support the other financially for a temporary or permanent basis is decided on a case-by-case basis as agreed to by the parties or at the court's discretion.
The court has the right to establish maintenance for either spouse in a divorce proceeding. In determining the appropriate amount, the judge, at his or her discretion. The judge will consider; the value of each spouse's estates as well as their families and up to 50% of any retirement benefits as long as the marriage was ten year or longer. The misconduct of either spouse may be considered in determining the amount; provided, however, that any property acquired prior to the marriage of the parties or by inheritance or gift may not be considered in determining the amount. (Code of Alabama - Title 30 - Chapters: 2-51, 2-52, and 2-55)
Child Custody:When minor children are involved in a divorce, the Alabama courts will do everything possible to help lessen the emotional trauma the children may be experiencing. If the parents cannot come to an agreement regarding the issues involving the children, the court will establish the custody order at its discretion.
Upon granting a divorce, the court may give the custody and education of the children of the marriage to either father or mother, as may seem right and proper, having regard to the moral character and prudence of the parents and the age and sex of the children; and pending the action, may make such orders in respect to the custody of the children as their safety and well-being may require. But in cases of abandonment of the husband by the wife, he shall have the custody of the children after they are seven years of age, if he is a suitable person to have such charge.
In all cases of voluntary separation of husband and wife, the circuit court has power, on the motion of either party, 20 days' notice thereof being given to the other, to permit either the father or mother to have the custody and control of the children and to superintend and direct their education, having regard to the prudence, ability and fitness of the parents, and the age and sex of the children. (Code of Alabama - Title 30 - Chapters: 3-1)
Child Support:Alabama child support guidelines are based on the Income Shares Model for calculating child support. The monthly support amount determined by applying the guidelines is divided proportionally according to each parent’s income. These two support amounts are then offset to establish which parent will pay the other parent for support of the child. All income is typically verified by examining past W-2's and child support worksheets are available at the courthouse.
When the parties cannot agree, the court will apply the state support guidelines which are presumed to be correct unless the court feels a deviation form the amount is appropriate. The court will deviate from the guidelines if the parties agree to do so or it believes it is necessary in order to establish an order that is in the best interests of the children. The parents are required to file an income and expense affidavit along with w-2's to verify income. (Code of Alabama - Title 30 - Chapters: 3-1)
Copyright Notice: The above synopsis of Alabama divorce laws is original material which is owned and copyrighted by Divorce Source, Inc. This material has been adapted from applicable state laws and unauthorized reproduction is prohibited. Violation of this notice will result in immediate legal action.
In determining Alabama child custody, the court considers the wishes of the parents, the wishes of the child if the child is of sufficient age to appreciate the situation, the child's relationship with siblings and extended family, the educational needs of the child, and the mental and physical health of the child.
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