How to file for divorce in Alabama

There are several aspects of divorce that should all be considered prior to filing. These include, but are not limited to, grounds for divorce, jurisdiction, residency, divorce by trial or default, contested or uncontested divorce, child support/visitation/custody, alimony, court costs and fees. This lens will try to simplify all of these issues for anyone who is considering filing for divorce in Alabama.

In order to file for divorce in Alabama, either you must have lived in Alabama for the past six months or your spouse must be a resident of Alabama. If you do not meet one of these requirements, you cannot file for divorce in Alabama.

In Alabama, you can get a divorce for any of several specific reasons. These include adultery, desertion, penitentiary imprisonment for certain prolonged periods, addiction to alcohol or drugs, mental incapacity, cruelty, or conditions which existed at the time of the marriage without the knowledge of the other party such as pregnancy and incurable physical problems which keep one spouse from entering into the normal marriage state.

Alabama no longer requires you to establish fault to get a divorce. If you prove that you and your spouse can no longer get along with one another or that the marriage is broken beyond repair, that is enough.

Alabama law lets you file for divorce in either the county where you and your spouse separated or the county where your spouse now lives. It also lets you file where you live if your spouse does not live in Alabama.

Under Alabama law, you file for divorce in circuit court. In some counties, you have to file in the part of circuit court called family court or domestic relations court. The court charges a filing fee when you file for divorce. This fee varies from county to county, but generally is between $150 and $250. You may also have to pay to serve copies of the divorce papers on your spouse and to file certain motions with the court. You can delay these fees at the beginning of the case by filing a hardship affidavit. However, the court will require one party or the other to pay them at the end of the case.

There are links below for all Alabama counties that have information online regarding divorce. These links have information such as filing fees, instructions, forms and contact information.

Two common methods of obtaining a divorce are by default or trial. A default divorce occurs when the party against whom the divorce suit is brought fails to respond within the time limit set by law. If the defendant files a response to the complaint, the case will be set for a trial. In this set of circumstances, unless the case is settled prior to its going to trial, there will be an actual trial before the judge with each party having the right to call witnesses. In either case the judge must decide all of the pertinent issues, such as whether or not a divorce will be granted, custody of the children, amount of child support, alimony, and division of property. The difference is that if there is a default, the judge will base his ruling on the oral or written testimony of only the party who filed the suit.

During a divorce, the court determines custody and visitation of the minor children of the couple. This determination is based on the discretion of the court guided by consideration of the following factors: best interest and welfare of the children, fault of the parties, character and conduct of each parent, age and sex of the children, past care and custody of the children, economic conditions of the parents, preference of the children, and agreement of the parents.

Future parenting of the children is very important, and you should give your attorney all relevant information that might affect with which party the children will live. The courts favor a natural parent having physical custody of the children, but it can award custody to other parties such as grandparents or even unrelated persons if it is in the best interest of the children.

The parent who does not have the children living with him or her (non-custodial parent) has the right to visit the children or have them visit him or her. Generally, visitation rights are set by the judge and are generally expressed in terms of reasonable times and places upon reasonable notice; but a divorce decree can also set out specific visitation privileges at certain times and places, i.e.: every other weekend, certain holidays, birthdays, etc.

Once the determination is made that a divorce should be granted, the primary concern of the court becomes the well-being of the minor children of the parties. It is the responsibility of the court to determine the amount that the non-custodial parent is responsible to contribute for support of the minor children.

The court must use the Child Support Guidelines adopted by the Alabama Supreme Court in setting the amount of child support, unless the court specifically finds that following the Guidelines would be unjust and inappropriate. The court combines the income of the divorcing parents, determines from the Guidelines the applicable amount of child support for the number of children of the marriage based upon that income, adjusts this amount for work-related child care expenses and health insurance premiums, and then assigns a portion of that support amount to the non-custodial parent based on his/her percentage share of the combined income.

The most important factors to be considered by the court in making an award of child support are the needs of the children and the parent's ability to earn and pay his/her portion of the support. A parent's obligation to pay child support may be based on his or her demonstrated ability to earn a
certain amount of money, not what that parent is choosing to earn.

Child support is paid until the child reaches the age of majority, but can be extended beyond that time under certain circumstances, such as during post majority education (college), or where the child is mentally or physically disabled.

It is always best if a divorcing couple can work out the division of their property themselves and incorporate this agreement into the divorce decree. This is because the couple is more familiar with their property than anyone else and agreements such as these are looked upon favorably by the court.

If the couple cannot reach an agreement on their own, the court will divide the property based on the needs and interests of the parties. The court will determine the needs and interest through the testimony given at trial.

It is within the court's discretion to order a transfer of property owned individually by either spouse or jointly-held property in order to make the division fair to both parties. The court can order either party to convey his or her interest in stocks, vehicles or real estate to the other spouse.

Today, either a husband or wife may be entitled to alimony if the court determines either needs support and the other party is in a financial position to provide this support. There are two types of alimony: temporary & permanent.

Temporary alimony is awarded during the time between when a divorce suit is filed and a final decision is reached. Permanent alimony is awarded by the court upon entering its final decree of divorce. Permanent alimony can either be a fixed, total amount that cannot be changed ("in gross") or can be payable on a regular basis without a fixed total and can be modified under certain conditions ("periodic").

It is completely within the court's discretion whether alimony is awarded to any party during a divorce. The court will consider certain factors in making its determination on whether alimony is appropriate. These factors include the length of the marriage and age, earning capacity, health, conduct, education and the personal income of each of the parties.

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