By Womansdivorce.com | Updated August 4, 2020
If you're considering a divorce in Alabama, the information and resources below can help make the process easier. You can access the appropriate divorce laws to know what your rights are and what to expect, as well as read through the child support guidelines and use the calculator to determine how much child support might be granted in your case.
If funds are tight and you can't afford a lawyer, you can get separation and divorce forms that are specific for AL. Or if you would rather have an experienced lawyer handle your case, there is an option to locate these professionals in your area. There is also information on domestic violence services in the state and divorce support groups in your area to help you get through your situation.
If you have reached the point where you don’t believe your marriage can be salvaged, you probably have many questions that need answers. The information below answers many of the commonly asked questions regarding Alabama divorce.
If you are considering a divorce, you must first meet the state residency requirements. As per Alabama Code 30-2-5, if the defendant (the person against whom the divorce action is sought) is not an Alabama resident, then the person filing for divorce must have been a resident of the state for at least six months.
You are required to file for divorce in the county in Alabama where you live, or the county in where your spouse lives. The state of Alabama also requires that couples wait for a minimum of 30 days from the date they file for divorce, under the theory that this waiting period allows couples to consider reconciliation.
Couples can choose to divorce under no-fault grounds or either spouse can file for a fault-based divorce based on the other’s actions. No-fault divorce allows a person asking for the divorce to avoid stating a specific reason for the divorce. Under no-fault divorce, you can claim irreconcilable differences or that there is an irretrievable breakdown of the marriage. No-fault divorces tend to be a bit less contentious than divorces where fault must be stated.
You can also claim that your spouse's behavior is responsible for the marriage ending. Acceptable grounds for a fault-based divorce in Alabama include the following:
Should you decide to file on the fault-based grounds of a history of violence throughout the marriage, you will be required to prove you were fearful for your life or health during the violence.
An uncontested divorce means that you and your spouse agree on virtually every aspect of the divorce, including asset division, spousal support and child custody. If this is true, a couple can file together in the state of Alabama, so long as you have lived in the state for at least six months. If the divorce truly is uncontested, the couple will provide a settlement agreement for the judge to approve. If, however, there are any disagreements regarding the major issues, you now have a contested divorce and will likely end up in court, having a judge make these big decisions on your behalf.
If you initially agree to an uncontested divorce, then realize there are issues you just cannot agree on, you have the option to convert to a contested divorce and go to trial. In the same vein, if you are in the middle of a contested divorce, then you and your spouse determine you can come to an agreement, you can ask that the judge convert your divorce to an uncontested divorce. Couples who can reach their own agreements are likely to be much happier with the outcome over the long haul, and less likely to be satisfied with the judge’s decisions. Despite this, and despite the best efforts of divorce lawyers, many couples are simply too emotional to reach agreements together.
In the state of Alabama, there is an alternative to divorce, known as legal separation. While many states offer this option, many others do not. In a legal separation, the same issues as those in a divorce are decided—asset division, custody and financial support. Yet, when all is said and done, you are still legally married. You may wonder why a couple would want to go through the entire process of what is, essentially, the divorce process, only to remain married.
There are couples whose religion prohibits divorce, therefore, a legal separation allows them to live separately until such time as they may choose to divorce. Other couples may want to stay legally married until the children are grown, so may choose legal separation as a means of doing so. If the following conditions are present, an Alabama court can grant a legal separation:
The terms of a legal separation cannot be changed by either party unless they both agree in writing, presenting a new agreement to the court for approval. If only one spouse wants to change the terms of the legal separation, the spouse requesting the change must be able to show there has been a material change in circumstances since the original order was entered by the court.
Your divorce forms must be filed in the county where either you or your spouse has lived for at least six months prior to filing for divorce. You - or your divorce attorney - will first file a Complaint for Divorce. The spouse filing for divorce becomes the plaintiff, and the responding spouse becomes the defendant. Any issue you want the court to consider must be clearly identified in your Complaint for Divorce. Those issued include the division of marital assets and debts, custody of your children, child support and alimony.
If you and your spouse have already agreed to all these issues, as mentioned above, you have an uncontested divorce and will simply need to have a marital settlement agreement prepared. Your Complaint for Divorce will be sent or taken to the county clerk. You will receive a copy of the Complaint with a date stamp and notation showing it has been filed with the court.
The Complaint for Divorce must be given, or “served” to your spouse. There are a number of ways you can serve your spouse. The easiest is that your attorney presents the complaint to your spouse’s attorney, who agrees to accept delivery of the Complaint. Acceptance of the Complaint is done in writing and signed by your spouse, with a witness also signing. The court has a form known as an Acknowledgement of Service, used to complete this service method.
You may also hire a process server—a sheriff, or constable of the county in which you are filing your divorce—to deliver the Complaint to your spouse. Once the server has delivered the Complaint, a note will be made in the court docket that the defendant has been served. Should your spouse refuse to accept service, the Complaint may be sent by certified mail, return receipt, by the court clerk. If the court clerk is unable to complete service to your spouse, you may need to post the divorce in a local newspaper.
You will likely have to make certain financial disclosures in connection with your divorce, such as the following:
The laws which determine how property and debts are divided during a divorce differ from state to state. Alabama follows what is known as equitable distribution, as opposed to community property laws. Under community property laws, marital assets are divided right down the middle, 50/50, regardless of any extenuating circumstances. Under equitable distribution laws, marital assets are divided fairly, or equitably, but not necessarily equally. The approach taken under equitable distribution is more nuanced, requiring a careful evaluation of a number of factors, including the following:
Before your assets can be divided, it must first be determined which of the assets are marital assets, and which are non-marital assets. While there are exceptions, non-marital assets generally include anything owned by either spouse prior to the marriage, as well as inheritances and gifts given specifically to one spouse.
The exceptions to this rule occur when a non-marital asset has been commingled with marital assets. As an example, suppose your Aunt Beth left you $50,000 prior to your marriage. After your marriage, you put that $50,000 into your joint bank account. Once you do this, the money goes from being a non-marital asset, to a marital asset.
Or, suppose Aunt Beth left you a house on the beach prior to your marriage. So long as the title remains solely in your name and no marital funds are spent on the beach house, it will remain your sole and separate property, not subject to division during the divorce. If the beach house appreciates significantly during your marriage, then the appreciation portion could be subject to division during the divorce, but the house would remain yours.
Marital property includes any assets earned, generated, purchased, or otherwise obtained during the marriage. Marital property which is subject to division during a divorce can include money, investments, real estate, retirement accounts and business assets, as well as other valuable items (jewelry, automobiles, artwork, etc.).
Many people make the mistake of assuming a gift given to them by their spouse remains theirs alone, however this is not true. If your spouse gives you a brand-new Mercedes for your 40th birthday, in the event of a divorce, the car’s worth will be assessed, and divided between the two of you.
In 2017, the governor of Alabama signed legislation which drastically changed alimony in the state. Included among those changes is specific limitations on when and for how long alimony is awarded. Either spouse may request interim alimony (also called temporary support or alimony pendent lite), which is paid while an action for divorce or separation is pending. To receive interim support in a valid marriage, the requesting spouse must show the need for support and the other spouse must be capable of paying the support.
The laws for periodic alimony were also changed, with this type of alimony only being awarded in certain situations. Most alimony awards are limited to just five years. This is to allow the dependent spouse adequate time to receive education or job training to become self-sufficient.
There are situations in which alimony may be extended to match the length of the marriage (i.e. a person who was married for 9 years would be limited to receiving alimony for 9 years). Examples in which alimony may be extended is when the dependent spouse has physical or mental limitations, or is of an advanced age where it would be difficult to become self-supporting.
There is an exception to the alimony limit for couples who have been married for 20 years or more. In cases where rehabilitation is not feasible, there is no time limit on how long alimony may be awarded for.
The amount of alimony awarded is meant to enable the dependent spouse the ability to preserve the status quo (as much as possible) which existed during the marriage. Even so, there is no set formula for calculating the amount of alimony to be awarded. The amount awarded will be based on the circumstances of each individual case and is up to the discretion of the judge.
Alimony may be modified based upon a showing of material change in circumstances of one or both parties. Alimony ends upon the death of either spouse, or if the receiving spouse remarries or openly cohabitates with a member of the opposite sex.
Child custody decisions are often among the most contentious decision to be made in a divorce. Under Alabama divorce law, the court can give custody to either the father or mother, depending on the best interests of the child as well as consideration of the moral character of the parents and the age and sex of the children. Many different factors are considered during child custody, including:
The judge will not consider any one factor more important than another, rather all factors will be taken into account. Each child custody case is determined on the facts of the case, and judges have a tremendous amount of discretion when determining custody.
In and of itself, misconduct such as adultery will not bar that parent from receiving custody, however if the misconduct by the parent would have a detrimental effect on the child (abuse or addiction) then the misconduct may be considered. Financial means of the parents will not determine child custody, however, may determine child support in light of the custody agreement.
The parents may share legal custody, with one parent having primary physical custody. Or one parent may have legal and physical custody, with the other having visitation rights. Joint physical custody could be awarded, but this does not always translate into an equal amount of time spent with each parent. It is most likely, barring unusual circumstances, that one parent will have primary physical custody of the child or children with the other having visitation rights - and probably paying child support.
If both parents are sharing legal and physical custody of the child or children, and both parents have about the same level of financial resources, there may be no child support ordered, however this is more likely to be the exception. Alabama courts follow the “Income Shares Model”, which is based on the premise that children should receive the same level of support that a two-parent family would provide. In making a determination of child support, the court shall apply Rule 32 of the Alabama Rules of Judicial Administration.
Both parent’s gross income is used in the calculation, with the higher-earning parent being responsible for a larger percentage of the support. The noncustodial parent is the parent who pays, because the court assumes that the custodial parent already spends their percentage directly on the costs of raising the children.
Under certain circumstances, the courts may decide not to follow the child support guidelines of the state. This could occur when parents share joint physical custody, or when one parent spends significantly more visitation time than the “standard” levels. Courts are also allowed to make adjustments when parents have either very high or very low incomes.
Throughout the country, same-sex spouses who are divorcing are generally entitled to the same benefits and protections as those in a “traditional” marriage. The division of assets, child custody, alimony, division of debt and child support are the same in a same-sex divorce as in a heterosexual divorce. There are, however, certain legal difficulties which can arise in a same-sex divorce, usually related to child custody issues when one partner has no legal right to the child yet may have raised the child as his or her own. Because of this, it is essential that divorcing same-sex couples have an Alabama divorce attorney who understands the specific issues related to a same-sex divorce.
In Alabama, unless circumstances dictate otherwise, the family court system prefers some variation of joint physical custody for divorcing couples with children. Even when parents may not be seeking joint custody, if there are no solid reasons why sole custody should be awarded, the court usually leans to a shared agreement when they deem it to be in the best interest of any children involved.
Regardless of the situation, you will need a court approved parenting plan that describes in detail how each child will be cared for as well as details about how time will be shared with both parents.
You’ll also need to consider how your custody agreement may affect child support. If one parent is going to spend significantly more time with a child than the other, it’s up to them to show the court why a standard child support formula might need modified.
Transition in Parenting
This is a 4-hour class offered by the Family Services Center in Huntsville, Alabama which is for parents of minor children who are getting a divorce. Parents will learn about how divorce affects their children and what they can do to minimize the effect. There is also a discussion about how parent's emotions can affect the divorce process, and more. You can call 256-551-1610 for more information about dates and times of the seminar.
This program is held at the Family Guidance Center in Montgomery, AL and is a 4-hour class structured to help you and your minor children learn how to cope with the various issues that result from separation and divorce. Spouses must attend separate sessions and are required to complete the entire program. You can call 334-270-4100 for more information about dates and times of the program.
Need a Divorce Lawyer? You can confidentially present your case on this service to have attorneys in your local area review your information and reply if they are willing to take your case. Best of all… it's Free.
QDRO Preparation - QdroDesk™ provides lawyers and individuals the ability to create all the necessary paperwork needed for dividing retirement accounts requiring a QDRO in a divorce or support case.
Birmingham Beginning Experience - The purpose of this group is to help children and adults work through the grief that arises due to death, separation or divorce. For more information, call 205-969-8509.
DivorceCare At Inverness Vineyard Church
DivorceCare Classes & DC4K
4733 Valleydale Road
Birmingham, AL 35242
A video based thirteen week support group taught by Psychologists, Psychiatrists, Counselors and Authors. Experienced facilitators who have been through a divorce lead the group.
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