Alabama Divorce Law
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Divorce Residency Essentials to Get Divorce in Alabama
When one of the spouses is a nonresident of the state, the spouse filing for divorce must have been a resident of the state for at least six months before filing for divorce.
The divorce may be filed for in any of the following:
- The county where the defendant resides;
- The county where the spouses both resided at the time of their separation; or
- The county where the plaintiff resides if the defendant is a non-resident of Alabama. [Code of Alabama; Title 30, Chapters 2-4 and 2-5].
Reasons for Divorce in Alabama
There are two primary categories of divorce filing in Alabama. They are fault and no-fault. In order to file for divorce in Alabama, the proper grounds must be established. Both spouses are involved in establishing these grounds, and both must substantiate and agree upon these, unless the divorcing spouse is trying to prove otherwise to the court.
- Irretrievable breakdown of the marriage.
- Complete incompatibility of temperment such that the parties can no longer live together.
- Voluntary separation lasting more than a year. [Code of Alabama; Title 30, Chapter 2-1].
- Living separate and apart without cohabitation for over two years without the husband supporting the wife (divorce must be filed by wife);
- Imprisonment (for over 2 years if the total sentence is over 7 years);
- Unnatural sexual behavior before or after the marriage;
- Drug Abuse;
- Confinement for incurable insanity for over five years;
- Wife pregnant by another at the time of the marriage without the husband’s knowledge;
- Physical abuse or reasonable fear that physical abuse will occur
- Inability to consummate the marriage. [Code of Alabama; Title 30, Chapters 2-1 and 2-2].
Custody of the Children in Alabama
A court in Alabama grants the custody of the children upon divorce. The child custody can be granted to either parent on the following grounds.
- Best interests of the child: When children who are minors are involved in a divorce, the Alabama courts will do whatever it takes to help lessen the emotional trauma on the children. If the parents cannot reach an agreement with regards to the issues in which the children are involved, the court will determine the matter of custody at its discretion.
- The age and sex of the child;
- The safety and well-being of the child
- The moral character of the parents
Alabama officially favors joint custody (but not equal physical custody) if in the best interests of the child and the parents agree. The wishes of the child are also a factor to be considered. There is a legal presumption against giving custody to any person who has inflicted any violence against either a spouse or a child. In abuse cases, the judge is required to consider any history of domestic abuse and may not consider the fact that a parent or spouse has relocated to avoid abuse. Factors taken into consideration for Alabama include:
- Parental custody agreement;
- Parental cooperation;
- Parental ability to encourage love and sharing;
- Any history of abuse
- Geographic proximity of parents.
Joint custody may be awarded. However, if the wife abandons the husband and the children are over seven years old, the husband is granted custody if he is suitable. Grandparents may be given visitation rights. [Code of Alabama: Title 30, Chapters 3-5 to 3-6.1,3-60 to 3-71,3-110 to 3-115, 3-170 to 3-179, 3-190 to 3-200; and Alabama Case Law]
Alabama Spousal Support Guidelines
The judge has full discretion when it comes to issuing an allowance for maintenance to either spouse if the spouse does not have the means to do so for themselves.
This award may be made out of the property belonging to the other spouse, unless it is separate property (acquired by gift or inheritance, or acquired prior to the marriage) and was never used for the common benefit of the marriage.
In applying the statewide uniform guideline, the courts will consider the following:
- The value of the estate of both spouses
- The condition of the spouse’s family. Up to 50% of a spouse’s retirement benefits may be used for alimony if the retirement was accumulated during a marriage of ten years or more. Misconduct of either spouse may be considered in the determination as to whether to award maintenance and may totally bar the right to any maintenance. Any award of maintenance will be terminated if the recipient is living openly with a member of the opposite sex or has remarried. [Code of Alabama: Title 30, Chapters 2-51, 2-52, and 2-55].
Alabama Child Support Guidelines
Child support guidelines in Alabama are based on the official Child Support Guidelines contained in the Alabama Rules of Judicial Administration: Rule 32. These guidelines are presumed to be correct unless there is a showing that the amount would be unjust or inappropriate under the particular circumstances of a case. A written agreement between the parents for a different amount with a reasonable explanation for the deviation from the guidelines will also be allowed. A standardized Child Support Guidelines form and Child Support Income Statement/Affidavit must be filed in every case in which child support is requested. There is also a procedure for expedited processing in child support cases. Alabama driver’s licenses may be suspended for failure to pay child support. [Code of Alabama: Title 30, Chapters 3-5 to 3-6.1,3-60 to 3-71,3-110 to 3-115, 3-170 to 3-179, 3-190 to 3-200 and Alabama Rules of Judicial Administration: Rules 32 and 35].
Alabama is an “equitable distribution” state and the judge has full discretion to divide any jointly-owned real estate or personal property, but does not have the authority to award the wife’s separate property to the husband (regardless of whether the wife’s separate property was obtained before or after the marriage). Gifts and inheritances are considered separate property and are not subject to division unless they have been used for the common benefit of both spouses. The property division need not necessarily be exactly equal, but it must be equitable. Marital fault may be considered in the division of property. [Alabama Case Law].
There is no legal provision in Alabama for mediation.