The term divorce refers to the legal process in which a couple’s marriage or legal union is dissolved by court order. Once a divorce has been finalized, each person will have sole control of the assets awarded to them in the divorce and may choose to remarry. Each state has its own requirements and laws regarding the divorce process, and the actual process of filing for divorce will differ by state.
In general, all states require that the spouse filing for the divorce must be a resident and domicile of the state in which they are filing. As for the time required for establishing residency, the time will differ between states, but the time is generally a minimum of six months. Alabama requires a person to have resided in the state for at least 180 days before initiating divorce proceedings.
What Are the Different Types of Divorce?
Another factor involved in a divorce proceeding is the type of divorce the petitioner files under. There are two different types of divorce:
- No Fault Divorce: No-fault divorces do not require the filing spouse to prove any wrongdoing on behalf of either spouse to file and obtain the divorce.
- No-fault divorces are available in the state of Alabama.
- Some states do require that the couple declares that they can no longer get along, which is most commonly referred to as “irreconcilable differences.”
- In the state of Alabama, a person filing a no-fault divorce may cite that the marriage is “irretrievably broken”;
- At Fault Divorce: A spouse may also state that the other party is at fault for breaching the marital contract. What exactly constitutes fault will vary from state to state, but the commonly cited reasons for at-fault divorce include:
- Cruelty, i.e., the intentional infliction of unnecessary physical or emotional pain;
- Adultery, i.e. cheating;
- Desertion for some time;
- Confinement in prison for a set amount of time; or
- The physical inability to consummate the marriage or impotence.
Is There a Difference Between a Divorce and Separation in Alabama?
In short, yes. In Alabama, a couple has the choice to either file for a divorce or do a legal separation. Once again, a divorce is the legal ending of a marriage by court order. In contrast, a legal separation is a legal agreement that ends certain rights and responsibilities of a marriage, but the couples remain married. In Alabama, legal separation in Alabama is referred to as a “court determination of the rights and responsibilities of a husband and wife arising out of the marital relationship.”
Thus, the results of a divorce and a legal separation are different. When a divorce is finalized, the spouses are no longer married. However, in a legal separation, the couples live separate lives but are still married. As such, the couples cannot legally choose to remarry under a legal separation.
What Paperwork Is Needed to File for Divorce in Alabama?
Once again, for a person to file for divorce in Alabama, they must:
- Be a resident in Alabama for at least 6 months before they file;
- Be a resident in the county in which they file; and
- Attest that their marriage is irretrievably broken, there is spousal incompatibility or voluntary abandonment.
Once an individual meets the requirements for filing for divorce, they must then file a petition for divorce in the family law court in the county in which they or their spouse lives. Next, the filing spouse must notify their spouse of the divorce petition, along with serving them the petition. Then, the spouse that is served will have 30 days in which to respond to civil summons. If the spouse that is served with the paperwork makes no response, then the filing spouse will be able to seek a default judgment.
How Is Community and Separate Property Defined in Alabama?
Alabama is a separate property state. This means that for divorce property in Alabama, the court will distribute property by equitable distribution. Thus, instead of courts trying to split property 50/50, they will use certain factors to decide what is fair to give each spouse. Examples of common equitable distribution factors include:
- What each spouse contributed to the overall marital property;
- The value of the property that was set apart for each spouse;
- Any agreements by the two parties regarding the division of property;
- The length of the marriage; and
- The financial circumstances of each spouse when the court divides the marital property.
The court must also decide whether the property of the spouses is considered to be marital property or separate property at the time of the divorce. Marital property is any property the couple acquired during the marriage, including income. Separate property is any property that either party owned before the marriage and any property that either party receives during the marriage as a gift, inheritance, or from a will.
What If There Are Children Involved in the Divorce Case?
During a divorce or separation case that involves children, a family law judge will make determinations as to both child custody and child support. During a divorce proceeding, child custody and support orders may either be temporary or permanent. Once again, a final decree of divorce involving children will contain a final child support and child custody order.
An Alabama family law court will decide child custody based on the best interest of the minor child or children involved in the case. The court may choose to either order full custody or shared custody. A judge will then determine which parent will be ordered to pay child support based on whether one or both parents have custody of the child.
If the court orders split custody, no child support may be ordered. However, in some cases, a child support award may still be ordered. In the case of an uneven custody order, the state child support guidelines will be used to help establish the amount of the support payments based on the following:
- The child’s medical or dental needs;
- The child’s educational, job training, or special needs;
- The child’s independent financial resources;
- The income of each of the parents; or
- Any agreements of child support payments made between the parents in a written or mediated agreement.
How Are Alimony Payments Handled in Alabama?
During a divorce case, a family law court may decide that one spouse must pay alimony to the other spouse. It is important to note that a spouse seeking alimony in Alabama must prove:
- That they do not have a separate estate, or their separate estate is insufficient to maintain the economic lifestyle (or status quo) they had during the marriage;
- That the other party has the financial means to make payments that allow the party seeking alimony to maintain the same standard of living as before the marriage; and
- That the facts of the divorce case make alimony a fair award.
In Alabama, if an alimony award is awarded, it is typically temporary and will terminate upon the person receiving alimony remarrying, cohabitating with a sexual partner, or becoming self-sufficient.
Do I Need a Lawyer for Help With Divorce in Alabama?
If you or your spouse live in Alabama and are considering filing for divorce, you should consult with an experienced Alabama divorce lawyer. An experienced Alabama divorce attorney will be best suited to help you understand your state’s specific laws governing divorce, child custody, child support, and alimony.
Finally, an experienced family law attorney will also be able to initiate the divorce process on your behalf, as well as represent you at any in-person court hearing, as needed.
