Divorce in Alabama: The Legal Process, Your Rights, and What to Expect

By Jessica Kirk Drennan

Providing accurate and objective information to help make the right decisions during a divorce in Alabama, this guide provides answers to 360 queries such as What is the mediation process in Alabama and is it required? How quickly can one get a divorce? Who decides who gets the cars, the pets, and the house? What actions might influence child custody? How are bills divided and paid during the divorce? How much will a divorce cost? and Will a spouse have to pay some or all attorney fees? Structured in a question-and-answer format, this divorce handbook provides clear and concise responses to help build confidence and give the peace of mind needed to meet the challenges of a divorce proceeding.

• Language: English
• Publisher: Independent Publishers Group
• Release date: Mar 1, 2014
• ISBN: 9781940495385

Book preview

Author

Introduction

Ihave long believed that people who enter a law office for an initial consultation about a divorce are among the most courageous people I know. The fact that you scheduled an appointment and showed up for it tells me that you are taking the first steps of what might be the biggest journey in your life so far.

Looking at divorce is challenging, whether you are seeking it with confidence that you must end your marriage or whether you were absolutely shocked when the sheriff served you with divorce papers at your workplace. Divorce means a time of uncertainty, loss, and change. It can also mean relief, hope, and a sense of possibility for your future.

Navigating through the legal process of a divorce calls for support. Divorce in Alabama is intended to provide part of that support, making this process a little easier by giving your expectations a framework. It is not intended to be a substitute for advice from your lawyer. Rather, it is designed to assist you in partnering with your lawyer to reach your goals in the resolution of your divorce. Listening to and taking your lawyer’s advice is important above all else.

My hope is that this book will be used not only by people going through divorce, but also by professionals who support them—attorneys, mediators, therapists, clergy, financial advisors, and others who are called upon to serve clients who are divorcing.

Every divorce is different. Every client has different needs and goals. Every case has different facts. Regardless of your unique situation, my hope is that Divorce in Alabama helps to identify the questions many of you have and provide answers for those questions.

1

Understanding the Divorce Process

At a time when your life can feel like it’s in utter chaos, sometimes the smallest bit of predictability can bring a sense of comfort. The outcome of many aspects of your divorce may be unknown, increasing your fear and anxiety. But there is one part of your divorce that does have some measure of predictability, and that is the divorce process itself.

Most divorces proceed in a step-by-step manner. Despite the uniqueness of your divorce, you can generally count on one phase of your divorce following the next. Sometimes just realizing you are completing stages and moving forward with your divorce can reassure you that it will not go on forever.

Develop a basic understanding of the divorce process. This will lower your anxiety when your attorney starts talking about depositions or going to trial, and will prevent your heart from pounding in fear. It can reduce your frustration with the legal process because as your divorce progresses you understand each step and why it is needed. It will also help you prepare for each step in advance, which keeps your divorce moving toward final resolution in an efficient manner. Most importantly, understanding the divorce process will make your experience of the entire divorce easier. Who wouldn’t prefer that?

1.1 What steps are taken during the divorce process?

The divorce process in Alabama typically involves the steps listed in the chart that follows.

1.2 Must I have an attorney to get a divorce in Alabama?

You are not required to have an attorney to obtain a divorce in Alabama. However, if your case involves children, alimony, significant property, retirement, or debts, you should avoid proceeding on your own.

If your divorce does not involve any of these issues, contact your local/state volunteer lawyer program, Legal Clinic at University of Alabama School of Law, Cumberland School of Law, or Faulkner University Jones School of Law, to request documents and instructions that are helpful in the simplest of cases. A person who proceeds in a legal matter without a lawyer is referred to as being pro se (pronounced pro-say), meaning on one’s own.

If you are considering proceeding without an attorney, at a minimum have an initial consultation with an attorney to discuss your rights and duties under the law. You may have certain rights or obligations you are unaware of. Meeting with a lawyer can help you decide whether to proceed on your own.

1.3 What is my first step?

Find a law firm that handles divorces as a regular part of its law practice. The best recommendations come from people who have knowledge of a lawyer’s experience and reputation.

Even if you are not ready to file for divorce, call to schedule an appointment right away to obtain information about protecting yourself, your property, and your children. Even if you are not planning to file for divorce, your spouse might be.

Ask what documents you should bring to your initial consultation. Make a list of your questions to bring to your first meeting. Start making plans for how you will pay your attorney to begin work on your case.

1.4 Is Alabama a no-fault state or do I need grounds for a divorce?

Alabama, like most states, has no-fault grounds. But Alabama also has fault grounds. The no-fault grounds make it possible to be granted a divorce by simply proving that you have an incompatibility of temperament with your spouse or that there has been an irretrievable breakdown of your marriage. The attorney will usually include both no-fault grounds in the complaint for divorce that is filed with the court.

The testimony of either you or your spouse is likely to be sufficient evidence for the court to rule that the marriage should be dissolved on a no-fault ground. This testimony, usually given by the spouse who filed for the divorce, will state that efforts at reconciliation were made, that those efforts were not successful, that further attempts would not be beneficial, that the marriage is irretrievably broken, or that there is such disagreement between you and your spouse and so many differences of interests that you can no longer live together as husband and wife.

The judge may ask for information regarding the nature of the problems that led to the divorce or the type of reconciliation efforts made, such as counseling with a therapist or clergy member. Some specificity is required in Alabama. A mere statement that you are incompatible with your spouse or that your marriage is irretrievably broken is insufficient.

There are ten fault grounds in Alabama:

Incapacity to enter marriage—due to age, mental capacity, previous undissolved marriage, or other legal impediment

Adultery

Voluntary abandonment for one year without spouse’s consent

Imprisonment for two years, with sentence for seven or more years

Crime against nature, which is a sexual act, such as sodomy, bestiality, and necrophilia

Habitual drunkenness or drug addiction

Incurable insanity after confinement for five years

Pregnancy at time of marriage, without knowledge or agency of husband, which means the husband did not cause the pregnancy nor did he know about the pregnancy at the time of marriage

Violence or reasonable fear of violence

Living separate and apart without support for two years

It can be difficult to present enough evidence to legally prove a fault ground; therefore, the courts usually grant divorces on no-fault grounds. Even on those occasions when a divorce is granted on a fault ground, the court will also, in most circumstances, grant it on a no-fault ground. When the court grants your divorce on more than one ground, all grounds will be stated in your final judgment of divorce.

1.5 Do I have to get divorced in the same state I married in?

No. Regardless of where you were married, you may seek a divorce in Alabama if the jurisdictional requirements of residency are met.

1.6 How long do I have to live in Alabama to get a divorce in the state?

Either you or your spouse must be a resident of Alabama to be granted a divorce in Alabama. If one spouse does not reside in Alabama, then the other spouse is required to reside in Alabama for at least six months immediately before filing for divorce in Alabama.

If neither party meets the residency requirement, other legal options are available for your protection. Talk to your attorney about options such as a petition for a custody and support order, or a protection from abuse order.

1.7 My spouse has told me she will never give me a divorce. Can I get one in Alabama anyway?

Yes. Alabama does not require that your spouse agree to a divorce. If your spouse threatens to not give you a divorce, know that in Alabama this is likely to be an idle threat without any basis in the law.

Under Alabama law, to obtain a divorce you must be able to prove that your marriage is irretrievably broken, or that you and your spouse or so incompatible that you can no longer live together as husband and wife. The only evidence required to prove this is your testimony given under oath to the court. In short, it is not necessary to have your spouse agree to the divorce, nor is it necessary for your spouse to agree to the specific difficulties that arose during the marriage contained in your testimony to obtain a divorce in Alabama.

1.8 Can I divorce my spouse in Alabama if he or she lives in another state?

Provided that you have met the residency requirements for Alabama by residing in Alabama for at least six months, you can file for divorce here even if your spouse lives in another state.

Discuss with your attorney the facts that will need to be proven and the steps necessary to give your spouse proper notice to ensure that the court will have jurisdiction over your spouse. Your attorney can advise you on whether it is possible to proceed with the divorce.

1.9 How can I divorce my spouse when I don’t know where this person lives now?

Alabama law allows you to proceed with a divorce even if you do not know the current address of your spouse.

First, take action to attempt to locate your spouse. Contact family members, friends, former coworkers, or anyone else who might know your spouse’s whereabouts. Attempt to use your spouse’s last known residential addresses, telephone numbers, and email addresses. Utilize resources on the Internet that are designed to help locate people.

Let your attorney know of the efforts you have made to attempt to find your spouse. Inform your lawyer of your spouse’s last known address, as well as any work address or other address where this person may be found. Your attorney then will prepare a statement under oath, called an affidavit, setting forth that your spouse cannot be found despite your best efforts to do so and requesting that your spouse be given notice through publication in the newspaper. The clerk of the court will then direct that notice of the divorce be published in the newspaper once per week for four consecutive weeks. Your spouse will have thirty days from the last newspaper publication to file an answer with the clerk.

When your spouse receives notice by publication in a newspaper but does not file an answer with the court, you may receive a divorce by default. In a default divorce, the court may enter an order granting your divorce and dividing marital property located within the State of Alabama. However, you may not be able to get other court orders such as those for child custody, child support, alimony, or division of property located outside the State of Alabama. These types of court orders require personal notice to your spouse. Personal notice is when you give notice of the divorce to your spouse by sheriff, special process server, or certified mail, return receipt requested. Talk to your attorney about your options and rights if you don’t know where your spouse is living.

1.10 I just moved to a different county. Do I have to file in the county where my spouse lives?

You may file your divorce complaint either in the county where you and your spouse separated as husband and wife or in the county where your spouse resides.

1.11 I immigrated to Alabama. Will my immigration status stop me from getting a divorce?

If you meet the residency requirements for divorce in Alabama, you can get a divorce here notwithstanding your immigration status. Talk to your immigration lawyer about the likelihood of a divorce leading to immigration challenges.

If you are a victim of domestic violence or if your spouse often threatens to call immigration to report your status, tell your lawyer. You may be eligible for a change in your immigration status under the federal Violence Against Women Act. This act applies to male and female immigrants.

1.12 I want to get divorced in my Indian tribal court. What do I need to know?

Each tribal court has its own laws governing divorce. Requirements for residency, grounds for divorce, and the laws regarding property, alimony, and children can vary substantially from state law. Some tribes have very different laws governing the grounds for your divorce, removal of children from the home, and cohabitation.

If you and your spouse reside on an Indian reservation, the State of Alabama can only assume jurisdiction over your divorce if your Indian tribe does not provide for divorce in its tribal court, or, if the tribe does provide for divorce, when the tribal court agrees to relinquish its jurisdiction to the State of Alabama.

If you and your spouse do not live on an Indian reservation, then the State of Alabama may take jurisdiction over your divorce proceeding. However, the court may not be able to address child custody issues as the federal Indian Child Welfare Act of 1978 gives tribal courts exclusive jurisdiction over child custody of an Indian child who lives on a reservation and arguably of an Indian child who does not. Federal law also prohibits a non-Indian man who marries an Indian woman from acquiring any rights to tribal property; therefore, the Alabama court’s power to divide marital property may be affected.

Due to the complexity of the legal issues concerning jurisdiction, child custody, property division, and other issues caused by the interaction of state, federal, and tribal laws, it is of the utmost importance to contact an attorney who is knowledgeable about the law in your tribal court for legal advice on pursuing a divorce in your tribal court or on the requirements for recording a divorce obtained in state court with the clerk of the tribal court.

1.13 Is there a waiting period for a divorce in Alabama?

Yes. Alabama has a mandatory thirty-day waiting period. This waiting period begins on the day that the complaint for divorce is filed with the clerk of the court. Therefore, the quickest a divorce may be granted in the State of Alabama is thirty-one days.

1.14 What is a divorce complaint?

A divorce complaint is a document filed with the clerk of the court to initiate the divorce process. The person who files the complaint for divorce is called the plaintiff, and the other spouse is then called the defendant. Sometimes referred to as a petition, the complaint will set forth in very general terms what the plaintiff is asking the court to order. The complaint may be signed by the plaintiff, the attorney, or both.

Sample Complaint

VERIFIED COMPLAINT FOR DIVORCE

COMES NOW the Plaintiff, JANE DOE, by and through her attorney, Jessica Kirk Drennan, and states the following separately and severally:

That the Plaintiff is over the age of nineteen (19) years and is a resident citizen of Jefferson County, Alabama, where she has resided for six (6) months next preceding the filing this Complaint for Divorce.

That the Defendant is over the age of nineteen (19) years and a resident citizen of (address of Defendant).

That the parties hereto were married on or about the 15th day of June, 1998, in Lickskillet, Alabama, and have since separated on or about the 19th day of October, 2013, in Birmingham, Jefferson County, Alabama.

That there are three minor children born unto the marriage, to wit: Elise Doe, date of birth: November 29, 2000; Dylan Doe, date of birth: October 7, 2002; and Kaleb Doe, date of birth: June 19, 2004. Plaintiff is not now pregnant. Plaintiff alleges she is the fit and proper person to have the care, custody, and control of said children.

That the Defendant is an able-bodied man who is gainfully employed or capable thereof.

That the Plaintiff is in need of child support including health insurance, non-covered medical and dental expenses, and extracurricular expenses.

That the Plaintiff is in need of post-minority support.

That the Plaintiff is in need of spousal support including health insurance and non-covered medical and dental expenses.

That the Defendant currently maintains health insurance covering the stated minor children and the Plaintiff.

That the Plaintiff alleges there has been an irretrievable breakdown of the parties’ marriage.

That the Plaintiff alleges there is such a complete and total incompatibility of temperament between the parties that they can no longer live together as husband and wife. That the incompatibility is so great that there is no possibility of reconciliation and further attempts to do so are not in the best interests of the Plaintiff nor the minor children.

That the parties have accumulated marital property, both real and personal.

That the parties have acquired marital debts.

That the parties have been married ten (10) years or more and have acquired retirement accounts.

That the Defendant maintains life insurance on his life, and the Plaintiff is in need of said life insurance to secure her awards of child support, spousal support, and property.

That the Plaintiff requests the use of her former name, to wit: Jane Ann Smith.

That the Plaintiff has incurred attorney fees and costs in the above-styled claim, and the facts and circumstances of the breakdown of the marriage and the parties’ financial conditions warrant an award of attorney fees.

WHEREFORE, PREMISES CONSIDERED, the Plaintiff, JANE DOE requests that the Defendant, JACK DOE, be made a party/defendant to this Complaint for Divorce, and that process of this court issue him requiring him to appear within the time period allowed by law to plead, answer, or otherwise defend against this Complaint, and that

UPON FINAL HEARING, upon pleading and proof, that your Plaintiff prays that this Honorable court grant her relief:

A. By divorcing the parties each from the other;

B. By awarding the Plaintiff the care, custody, and control of the minor children of the parties, with visitation to the Defendant;

C. By ordering the Defendant to pay child support, non-covered medical and dental expenses and extracurricular expenses;

D. By ordering the Defendant to maintain health and dental insurance covering the parties’ minor children and the Plaintiff;

E. By awarding the Plaintiff post-minority support;

F. By awarding the Plaintiff spousal support;

G. By ordering an equitable division of marital property, both real and personal;

H. By awarding the Plaintiff 50 percent of the Defendant’s retirement accounts;

I. By ordering an equitable division of the marital debts;

J. By ordering the Defendant to maintain the life