Divorce in Alabama is conducted as a civil action, with one party, plaintiff, filing a complaint for divorce, and the other party being named as a defendant.
Residency Requirement:
To file for divorce in Alabama, one of the spouses must have been a bona fide resident of the state for six months prior to the filing of the Complaint. This must be alleged in the Complaint and proven.
Filing:
A Complaint for Divorce may be filed in the circuit court of the county in which the Defendant (non-filing spouse) 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 Plaintiff (filing spouse) resides. Each jurisdictional court usually has a domestic relations or a family law department or division.
In an uncontested divorce, both parties may file in any county they choose.
A legal ground for Divorce must be alleged in the Complaint. Alabama requires a 30-day waiting period after filing the Complaint before the divorce may become effective.
The Plaintiff is required to provide the Defendant with a copy of the Complaint. The Defendant is not required to verify the Answer to the Complaint by oath, and whether sworn to or not, it is not evidence in the case, and can have no other effect than to put in issue the allegations of the Complaint.
If service by publication is required, the Alabama Rules of Civil Procedure should be followed.
Upon granting a judgment for Divorce, the Judge may direct whether the Defendant in the action is permitted to marry again. If no order is made disallowing the party the right to marry again, the party shall be deemed to have the right to remarry. If there is an order disallowing remarriage, if the party files a motion and shows proof, the Judge may then allow the moving party to marry again.
After granting a divorce, the court may order that neither party may remarry, except for each other, for a minimum of 60 days after judgment is entered. If an appeal is filed within 60 days of the divorce judgment, the court may order that neither party shall remarry, except each other, while awaiting the appeal.
Spouse's Name:
Upon request, the wife may resume the use of her maiden name or any previous surname.
After being granted a judgment of divorce, upon application of any interested party, the divorced wife may be legally prohibited from using the given name or initials of the divorced husband.
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Legal Grounds for Divorce
There are 12 statutory grounds for divorce in Alabama, most of which require a finding of fault on the part of one of the spouses. However, two of these grounds, incompatibility and irretrievable breakdown, are considered no-fault and are used most often.
The statutory grounds are as follows.
1. If, at the time of marriage, either party was physically and incurably incapacitated from entering into the marriage state;
2. Adultery;
3. Voluntary abandonment for at least one year prior to filing;
4. Imprisonment in a penitentiary in any state for at least two years, with a minimum sentence of seven years;
5. The commission of a crime against nature, with man or beast, either before or during marriage;
6. Becoming addicted after marriage to habitual use of alcohol, opium, morphine, cocaine or other like drug;
7. Incompatibility of temperament prohibiting the spouses from living together any longer, as determined by the court;
8. Confinement of one of the parties, after marriage, in a mental hospital for a minimum of five successive years, if that party is hopelessly and incurably insane at the time of filing the complaint (a certified statement attesting to this condition from the superintendant of the mental hospital is required.);
9. Irretrievable breakdown of the marriage, as determined by the court;
10. If the wife was pregnant at the time of marriage without the husband’s knowledge or agency;
11. If one party has committed violence against the other party or when his/her conduct causes a fear of such violence; or
12. If the wife has lived separate and apart from the bed and board of her husband for at least two years without support from him, and she has resided in Alabama during the two year period.
Annulment
The annulment process in Alabama is largely based on case law. Grounds for annulment include the following:
One party consented to the marriage due to fraud or duress;
One of the parties was under 14 years of age at the time of the marriage;
One of the parties was under the influence of alcohol or drugs when the marriage ceremony took place;
Bigamy;
Inability to consummate the marriage due to impotency; or
Marriage between parties closely related by blood (such as father, mother, nephew or niece, sister or brother, uncle or aunt).
Property Division
Alabama is an equitable distribution state. This means the divisions of assets and liabilities should be fair and equitable. This does not mean 50/50.
The property that each spouse brought into the marriage is considered his/her separate property and is awarded back to the spouse upon divorce. The remaining property is divided between the spouses as equitably as possible.
Alimony and Support
A judge has far more discretion regarding alimony than child support. Factors such as standard of living the married couple enjoyed while together, earning power of each party and length of marriage are taken into account. When fault is determined as grounds for the divorce, the judge may also use the misconduct of the offending spouse as a determining factor.
Alimony is usually only ordered in the case of a long-term marriage, where one spouse has been economically dependent on the other spouse for the duration. When alimony is ordered it is generally for a finite period, allowing the spouse receiving the support to return to school to prepare him/her to enter or re-enter the job market.
Pending an action for divorce, the court may order alimony for the time period while the divorce action is pending.
If either spouse has no separate estate, or if it is insufficient for the maintenance of a spouse, the judge may grant alimony with the divorce. The judge may not take into consideration any property acquired prior to the marriage of the parties or by inheritance or gift, unless the judge finds from the evidence that the property, or income produced by the property, has been used regularly for the common benefit of the parties during the marriage.
The judge may include the present value of a future or current retirement benefit in either spouse’s estate if the following conditions are met.
1. The spouses have been married for a period of 10 years during which the retirement was being accumulated;
2. The court may not include the value of any retirement benefits acquired prior to the marriage, including any interest or appreciation of benefits; and
3. The total amount of the retirement benefits payable to the non-covered spouse shall not exceed 50% of all the retirement benefits that may be considered by the court.
If the court finds that any of the covered spouse’s retirement benefits should be distributed to the non-covered spouse, the amount is not payable until the covered spouse begins to receive his/her retirement benefits or reaches the age of 65 years, unless both parties agree to a lump sum settlement of the non-covered spouse’s benefits payable in one or more installments.
When alimony is ordered, the ex-spouse paying the alimony may petition the court to terminate payments if the ex-spouse receiving alimony has remarried or is living openly or cohabitating with a member of the opposite sex.
Residency Requirement:
To file for divorce in Alabama, one of the spouses must have been a bona fide resident of the state for six months prior to the filing of the Complaint. This must be alleged in the Complaint and proven.
Filing:
A Complaint for Divorce may be filed in the circuit court of the county in which the Defendant (non-filing spouse) 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 Plaintiff (filing spouse) resides. Each jurisdictional court usually has a domestic relations or a family law department or division.
In an uncontested divorce, both parties may file in any county they choose.
A legal ground for Divorce must be alleged in the Complaint. Alabama requires a 30-day waiting period after filing the Complaint before the divorce may become effective.
The Plaintiff is required to provide the Defendant with a copy of the Complaint. The Defendant is not required to verify the Answer to the Complaint by oath, and whether sworn to or not, it is not evidence in the case, and can have no other effect than to put in issue the allegations of the Complaint.
If service by publication is required, the Alabama Rules of Civil Procedure should be followed.
Upon granting a judgment for Divorce, the Judge may direct whether the Defendant in the action is permitted to marry again. If no order is made disallowing the party the right to marry again, the party shall be deemed to have the right to remarry. If there is an order disallowing remarriage, if the party files a motion and shows proof, the Judge may then allow the moving party to marry again.
After granting a divorce, the court may order that neither party may remarry, except for each other, for a minimum of 60 days after judgment is entered. If an appeal is filed within 60 days of the divorce judgment, the court may order that neither party shall remarry, except each other, while awaiting the appeal.
Spouse's Name:
Upon request, the wife may resume the use of her maiden name or any previous surname.
After being granted a judgment of divorce, upon application of any interested party, the divorced wife may be legally prohibited from using the given name or initials of the divorced husband.
Visit us at Google+ Copyright HG.org
Legal Grounds for Divorce
There are 12 statutory grounds for divorce in Alabama, most of which require a finding of fault on the part of one of the spouses. However, two of these grounds, incompatibility and irretrievable breakdown, are considered no-fault and are used most often.
The statutory grounds are as follows.
1. If, at the time of marriage, either party was physically and incurably incapacitated from entering into the marriage state;
2. Adultery;
3. Voluntary abandonment for at least one year prior to filing;
4. Imprisonment in a penitentiary in any state for at least two years, with a minimum sentence of seven years;
5. The commission of a crime against nature, with man or beast, either before or during marriage;
6. Becoming addicted after marriage to habitual use of alcohol, opium, morphine, cocaine or other like drug;
7. Incompatibility of temperament prohibiting the spouses from living together any longer, as determined by the court;
8. Confinement of one of the parties, after marriage, in a mental hospital for a minimum of five successive years, if that party is hopelessly and incurably insane at the time of filing the complaint (a certified statement attesting to this condition from the superintendant of the mental hospital is required.);
9. Irretrievable breakdown of the marriage, as determined by the court;
10. If the wife was pregnant at the time of marriage without the husband’s knowledge or agency;
11. If one party has committed violence against the other party or when his/her conduct causes a fear of such violence; or
12. If the wife has lived separate and apart from the bed and board of her husband for at least two years without support from him, and she has resided in Alabama during the two year period.
Annulment
The annulment process in Alabama is largely based on case law. Grounds for annulment include the following:
One party consented to the marriage due to fraud or duress;
One of the parties was under 14 years of age at the time of the marriage;
One of the parties was under the influence of alcohol or drugs when the marriage ceremony took place;
Bigamy;
Inability to consummate the marriage due to impotency; or
Marriage between parties closely related by blood (such as father, mother, nephew or niece, sister or brother, uncle or aunt).
Property Division
Alabama is an equitable distribution state. This means the divisions of assets and liabilities should be fair and equitable. This does not mean 50/50.
The property that each spouse brought into the marriage is considered his/her separate property and is awarded back to the spouse upon divorce. The remaining property is divided between the spouses as equitably as possible.
Alimony and Support
A judge has far more discretion regarding alimony than child support. Factors such as standard of living the married couple enjoyed while together, earning power of each party and length of marriage are taken into account. When fault is determined as grounds for the divorce, the judge may also use the misconduct of the offending spouse as a determining factor.
Alimony is usually only ordered in the case of a long-term marriage, where one spouse has been economically dependent on the other spouse for the duration. When alimony is ordered it is generally for a finite period, allowing the spouse receiving the support to return to school to prepare him/her to enter or re-enter the job market.
Pending an action for divorce, the court may order alimony for the time period while the divorce action is pending.
If either spouse has no separate estate, or if it is insufficient for the maintenance of a spouse, the judge may grant alimony with the divorce. The judge may not take into consideration any property acquired prior to the marriage of the parties or by inheritance or gift, unless the judge finds from the evidence that the property, or income produced by the property, has been used regularly for the common benefit of the parties during the marriage.
The judge may include the present value of a future or current retirement benefit in either spouse’s estate if the following conditions are met.
1. The spouses have been married for a period of 10 years during which the retirement was being accumulated;
2. The court may not include the value of any retirement benefits acquired prior to the marriage, including any interest or appreciation of benefits; and
3. The total amount of the retirement benefits payable to the non-covered spouse shall not exceed 50% of all the retirement benefits that may be considered by the court.
If the court finds that any of the covered spouse’s retirement benefits should be distributed to the non-covered spouse, the amount is not payable until the covered spouse begins to receive his/her retirement benefits or reaches the age of 65 years, unless both parties agree to a lump sum settlement of the non-covered spouse’s benefits payable in one or more installments.
When alimony is ordered, the ex-spouse paying the alimony may petition the court to terminate payments if the ex-spouse receiving alimony has remarried or is living openly or cohabitating with a member of the opposite sex.
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