How Should I Handle Divorce?
Divorce is a difficult situation for anyone, regardless of the circumstances. Getting a divorce presents many complicated issues regarding property settlements, alimony, child custody, child support, and how to deal with debt. Our lawyers are trained to deal with issues that come up in divorces and how they impact families. There are many complicated nuances involved with getting divorced, so hiring the right lawyer is important.
Legal Recognition of Marriage and Divorce
Getting a divorce is a legal process. Two people are legally married when the court recognizes that they are joined in the bonds of matrimony. If a marriage starts to disintegrate and one person moves out, the couple is still married in the eyes of the law. Divorce is a legal status that must be recognized by the court.
Divorce is also a matter of public record. In the state of Alabama, anyone can obtain copies of a couples’ certificate of divorce from the Alabama Center for Health Statistics. Divorce certificates may be requested by paying the fee and providing enough information to search for the record.
The court does not have the power to force people to get married. However, it does have the power to release an individual from the bonds of matrimony, even if the other party does not want a divorce, as long as the complaint filed by the individual wanting the divorce meets certain criteria. This is known as a contested divorce.
Contested and Uncontested Divorce in Alabama
From a legal perspective, the divorce process begins when one spouse files a complaint for divorce with the court. To file for divorce in Alabama, one must be a resident for at least six months prior to filing. Divorce must be requested on the grounds of either fault (contested) or no-fault (uncontested). However, regardless of which type of divorce is requested, Alabama residents must wait at least 30 days for the divorce to be final, according to the state’s statutory waiting period.
Uncontested divorces are much simpler than contested divorces. If a couple has no children, no joint assets or debts, and a small amount of personal property, an uncontested divorce may be a simple matter, from a legal perspective. When the divorce is uncontested, the couple will not need to go to court.
Even with uncontested divorces, the person filing must cite one of the reasons listed in Alabama Code 30, Marital and Domestic Relations §30-2-1. Typically, persons filing an uncontested divorce will either cite incompatibility of temperament or irretrievable breakdown of the marriage.
Alabama Code 30, Marital and Domestic Relations §30-2-1
The circuit court has power to divorce persons from the bonds of matrimony, upon a complaint filed by one of the parties, for the causes following:
- In favor of either party, when the other was, at the time of the marriage physically and incurably incapacitated from entering into the marriage state.
- For adultery.
- For voluntary abandonment from bed and board for one year preceding the filing of the complaint.
- Imprisonment in a penitentiary for two years, the sentence being for seven years or longer.
- The commission of the crime against nature, whether with mankind or beast, either before or after marriage.
- For becoming addicted after marriage to habitual drunkenness or to habitual use of opium, morphine, cocaine, or other drugs.
- Upon application of either the husband or wife, when the court is satisfied from all testimony in the case that there exists such a complete incompatibility of temperament that the parties can no longer live together.
- In favor of either party, when the other, after marriage, shall have been confined in a mental hospital for a period of five successive years, if such party from whom a divorce is sought is hopelessly and incurably insane at the time of the filing of the complaint; provided, however, that the superintendent of the mental hospital in which such person is confined shall make a certified statement, under oath, that it is their opinion and belief, after a complete and full study and examination of such person, that such person is hopelessly and incurably insane.
- Upon application of either party, when the court finds there has been an irretrievable breakdown of the marriage and that further attempts at reconciliation are impractical or futile and not in the best interests of the parties or family.
- In favor of the husband, when the wife was pregnant at the time of marriage, without his knowledge or agency.
- In favor of either party to the marriage when the other has committed actual violence on his or her person, attended with danger to life or health, or when from his or her conduct there is reasonable apprehension of such violence.
- In favor of the wife when the wife has lived, or shall have lived separate and apart from the bed and board of the husband for two years and without support from him for two years next preceding the filing of the complaint, and she has bona fide resided in this state during that period.
When a judgment of divorce is entered, in effect, it is awarded to both parties to the marriage. If the divorce is contested, the person filing must provide evidence to prove their case. As a result, contested divorces may be contentious and complex, taking more time to resolve. The couple may attempt a collaborative process working with a lawyer or mediator to achieve the results they are seeking before going to court. In many contested divorce cases, however, a judge must intervene.
Other Types of Divorce
There are three other types of divorces that are less common in the state of Alabama, including annulments, military divorces, and default divorces.
- An annulment is different than a divorce because it essentially declares that there was no marriage in the first place. There are two types of annulments: civil and religious. A religious annulment is issued by a priest, rabbi, or other religious leader and is valid only in the eyes of the religious organization granting the annulment. The courts do not legally recognize a religious annulment. A civil annulment stating that the marriage is legally invalid may be granted if it can be proved that fraud was involved, going to the essence of the marriage. Examples may include an underage spouse or a spouse who had a sexually transmitted disease.
- Military divorces. Compared with a civilian divorce, a military divorce has several unique issues, including jurisdiction, distribution of property, and alimony/spousal support payments. For the court to have jurisdiction over a military divorce, a member of the U.S. armed services or his or her spouse must either reside in the state or currently be stationed in that state. Additionally, there are laws in place to protect active duty members from defaulting on divorce proceedings if their status as a member of the military precludes their attendance at court hearings. The laws also differ regarding retirement funds, distribution of property, and alimony/spousal support payments for military members.
- Default divorces. If a spouse does not answer the divorce complaint within the allotted amount of time, he or she may be subject to divorce by default, otherwise known as divorce by publication.
Marital Property Distribution
When a household is split, property must be divided. If spouses cannot agree on how their assets will be divided upon divorce, they effectively leave the decision to a judge. Generally, anything acquired by either of the spouses before the marriage is considered separate property not subject to distribution. Anything acquired by either spouse after the marriage is considered marital property, which may be divided according to state law.
Alabama follows equitable distribution when it comes to the division of marital property. The division does not have to be 50-50, it just has to be fair. This is a subjective determination made by the judge based on each spouse’s other assets, the duration of the marriage, the health of each party and their future earning power, as well as other factors.
During a divorce proceeding, it may be determined that one spouse may be required to pay alimony, or financial support, to the other. Alimony may be awarded on a temporary basis while the divorce proceedings are ongoing, as well as on a permanent basis once the divorce is final. In Alabama, there are two types of alimony:
- Alimony in gross, which comes in the form of a lump sum payment
- Periodic alimony, which is paid in installments on an ongoing basis
In either case, the purpose of alimony is to mitigate possible unfair economic effects of the divorce by providing income to the lower wage-earning spouse. When judges decide alimony amounts, they consider many factors, including the following:
- Conduct that contributed to the divorce
- Dependent children’s needs
- Future income potential of each spouse
- Income of the paying party/ability to pay
- Income of the receiving party/need for support
- Length of the marriage
- Spouse’s services rendered as a parent or homemaker
The age and health of each spouse, as well as the standard of living during the marriage, may also be considered.
Changes to Alabama Alimony Law
In April 2017, some aspects of alimony law in Alabama were changed with the ratification of HB 257. This law adds more stringent requirements to permanent alimony, and changes some of the rules governing interim alimony. The law also changed one aspect of periodic alimony known as rehabilitative support. This type of alimony is fairly common and provides support to the lesser-earning spouse only until they can obtain the skills needed to enter the workforce and thus become self-supporting.
Rehabilitative alimony is typically granted to the spouse who stayed home to take care of children while the other spouse went off to work. Previously, Alabama law did not put a time limit on rehabilitative alimony. After the passage of HB 257, the law now limits it to five years, with certain exceptions.
Retirement Accounts and Alimony
Prior to 2018, Alabama courts typically considered retirement accounts a resource for alimony provided the couple had been married for 10 years or more. Now, the time requirement has been eliminated. The new law also changed the way the courts view retirement accounts. Unfortunately, there is no specific formula for determining the amount and duration of alimony in Alabama. These decisions are left of up to the judge, who lets the facts and circumstances of each case dictate an award.
Failure to Pay
While they are court-ordered, alimony payments are far from guaranteed. If the supporting spouse fails to pay alimony, the recipient may file a petition with the court, asking to enforce the order using the following means:
- Fines and interest
- Garnishment of tax returns
- Increase in duration of alimony
However, the supporting party may attempt to demonstrate that there was a change in circumstances, warranting a decrease or cessation of alimony. The court may consider a modification or termination of alimony for the following reasons:
- A change in employment status of the receiving spouse
- A change in the paying spouse’s ability to pay
- Material changes in the health or age of either party
Alabama law permits the court to modify or terminate alimony under these circumstances.
Child Support and Child Custody
Child support is separate from alimony. The purpose of child support is to ensure that underage children are cared for until they reach the age of majority. In Alabama, judges must follow statutory guidelines regarding child support unless there is an acceptable reason to deviate. Generally, child custody decisions are made based on what is in the best interest of the child and courts will take several factors into account, including the following:
- Child’s wishes, if mature enough to state a preference
- Home environments of each parent
- Recommendations from experts
- Relationship between the child and each parent
- Sex and age of the child
Regardless of whether one or both spouses have custody, child support may need to be negotiated. Child support is intended to make sure there are enough finances to meet the basic needs of any children involved.
A final divorce decree may be modified as a result of a change in circumstances, typically involving either the children or financial circumstances. Those seeking to modify the terms of their divorce should seek the counsel of a qualified attorney in their local area to increase their chances of a successful outcome. Modifications may also be made to child custody and child support arrangements.
Is Divorce More Common Today?
Marriage and divorce are both common in our country. More than half of adults over age 35 are married or have been married, and the percentage increases to nearly 90 percent for those over age 75. Statistics indicate that the rate of divorce is decreasing. According to the Centers for Disease Control and Prevention (CDC), the divorce rate is currently about 2.9 per 1,000 population. The marriage rate is 6.9 per 1,000 total population. In Alabama, the divorce rate is slightly higher than the national average.
Legal requirements govern the grounds for divorce, as well as the distribution of property, alimony, child support, and child custody. At Hodges Trial Lawyers, P.C., we help clients navigate the complexities of divorce to obtain the best possible outcome in their cases.
Huntsville Divorce Lawyers at Hodges Trial Lawyers, P.C. Provide Experienced Legal Counsel on All Divorce Matters
For assistance with your divorce, contact the Huntsville divorce lawyers at Hodges Trial Lawyers, P.C. Our skilled attorneys provide compassionate guidance throughout the process, and we have experience representing clients across the state. For an initial consultation, call us at 256-539-3110 or complete our online contact form. From our offices in Huntsville and Athens, Alabama, we assist clients throughout North Alabama, Madison County, Limestone County, Marshall County, Jackson County, Morgan County, and Lauderdale County.