Alabama Divorce FAQ's

When the defendant is a non-resident of Alabama, the other party to the marriage 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.

Grounds The grounds upon which Alabama law permits a judgment of divorce to be granted include;

1. When either party to the marriage, at the time of contract, was physically and incurably incapable of consummating the marriage.

2. For adultery.

3. For 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. In favor of the husband, when the wife was pregnant at the time of marriage without the husband’s knowledge.

11. In favor of either party when the other has committed actual violence or placed the party in reasonable apprehension of such violence.

12. In favor of 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.

Name of court and title of action/parties Complaints for divorce are to 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. If the defendant is a non-resident of Alabama, then the action must be filed in the circuit court in which the other party to the marriage resides. The title of the action 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. The party who files the action is the Plaintiff, and the other party to the action is the Defendant. Waiting period Alabama law requires that thirty (30) days elapse from the filing of the summons and complaint before a final judgment of divorce be entered. Alabama further requires that neither party to the divorce may remarry, except to each other, until sixty days after the judgment of divorce is entered. If an appeal of the judgment of divorce is taken, the parties may not remarry, except to each other, during the pendancy of the appeal.

Legal separation 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, however. To obtain a judgment of legal sepearation, the parties must meet the same jurisdictional requirements as required by an action for divorce. The court must also determine that either; the bonds of matrimony have been irretrievably broken, that there exists an incompatiblity of temperment between the parties, or one or both of the parties desire to live separate and apart from the other spouse. In additon, 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. Alimony/support 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.

If, upon divorce, neither party has a separate estate, or that separate estate is insufficent for the maintenance of a spouse, the judge may award spousal support out of the other spouse's portion of the marital estate, taking into consideration the value of that portion and the condition of the spouse's family.

If the parties do have separate estates, the court may not consider the separate property of the parties, unless the court determines that the property in question or income derived from that property was regularly used for the common benefit of the parties during the marriage.

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.

Upon petiton to the court, an award of alimony shall terminate upon the submission of proof to the court that the party recieving alimony has remarried or is openly living/cohabitating with a member of the opposite sex.

Equitable Distribution 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. Separate Property The question here is whether property contributed by 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. So where a wife exercises exclusive dominion and control over property and excludes the husband from any role with it, and where the husband derived no benefit from the property by virtue of the marital relationship, the property is considered the wife's separate estate. However, where the parties regularly use property acquired before marriage for the common benefit of the parties, it is available for consideration in dividing property.

Child custody 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. Factors which the court will consider are: 1. The agreement or lack of agreement between the parents on joint custody.

2. The past and present ability of the parents to cooperate with each other and make decisions jointly.

3. The ability of the parents to encourage the sharing of love, affection and contact between the child and the other parent.

4. Any history of or potential for child abuse, spouse abuse or kidnapping.

5. The geographic proximity of the parents to each other.

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.

In order to implement joint custody, the court requires that the parents submit as part of their agreement provisions covering such things as the care and education of the child, the medical and dental care of the child, holiday and vacation visitation shcedules, and child support. Unless otherwise prohibited by the court, all records and information pertaining to the child, including but not limited to, medical, physiological, dental, scholastic, etc., shall be available equally to both parents.

Child support A person seeking to establish or modify an order of child support, the party must include in the petition the name, residential address, and social security numbers of the obligor and obligee, and the name, sex, residential address, social security number and date of birth for each child for whom support is sought. The petition must also specify the relief sought and be accompanied by a certified copy of any existing support order in effect.

Rule 32, Alabama Rules of Judicial Administration, Effective 10/4/93 Alabama’s Child Support Guidelines were adopted in response to requirements set forth in the Child Support Enforcement Amendments of 1984 (P.L. 98-378) and the Family Support Act of 1988 (P.L. 100-485). The guidelines provide an adequate standard support for children, subject to the ability of their parents to pay, and make awards more equitable by ensuring more consistent treatment of persons in similar circumstances. These guidelines are based on the income shares model developed by the National Center for State Courts and are founded on the premise that children should continue to receive the same level of support that would have been available to them had the family unit remained intact.

Application of the Child Support Guidelines in Alabama is mandatory unless the court makes a written finding on the record indicating that application of the guidelines would be unjust or inappropriate.

The Alabama Child Support Guidelines provide an adjustment for work-related child care costs, provided such costs do not exceed those on the schedule of guidelines for licensed child care costs published by the Alabama Department of Human Resources (DHR). The following are the DHR weekly child care rates for all Alabama counties effective as of September 1, 1997.

Rates are given for three school ages: infants/toddlers (0-30 months of age); preschool (30 month - school age); and school age. Rates are also given according to four licensing categories.

To determine the maximum adjustment you may enter for work-related child care costs, select the type of child care service you use from the list below. Then check the weekly rate for your county and the age of your child(ren). The following rates are per child. For more than one child, add the costs for each child to determine the maximum adjustment.

The maximum rate for part-time child care services is one-half the full time rate for the type of care and the age of the child.

Guidelines Explained 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: 1. The combined gross income of the mother and the father. 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. The amount paid for health insurance for the children, and the party responsible for paying it.

Deviation from Guidelines 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 therefor, or upon a written finding on the record that the application of the guidelines would be manifestly unjust or inequitable. Rule 32 enumerates five non-exclusive reasons courts may, but need not, deviate from the guidelines:

1. Shared physical custody or visitation rights providing for periods of physical custody or care of children by the obligor parent substantially in excess of those customarily approved or ordered by the court.

2. Extraordinary costs of transportation for visitation borne substantially by one parent.

3. Expenses of college education incurred prior to a child's reaching the age of majority.

4. Assets of, or unearned income received by or on behalf of, a child or children.

5. Such other facts or circumstances that the court finds contribute to the best interest of the child or children for whom support is being determined.

Income Outside the Range The guidelines only account for income above $6,600 per year and up to $120,000 per year. If the income falls outside the range, the trial court has discretion to come up with a figure in its discretion. This discretion is not unbridled, however. It must relate to the reasonable and necessary needs of the children.

Name change A wife may be enjoined from using the last name or initials of her former husband. Grandparent visitation At the discretion of the court, grandparents may be awarded visitation privileges of minor grandchildren.