Alabama Divorce Recovery

Marriage Annulment

To receive a marriage annulment in Alabama, one needs to claim grounds for annulment and provide proof that a specific condition was or is present that justifies the court providing an annulment. The process is based on case law (much like alimony is in many states). Conditions or grounds that would permit filing for an annulment in this state would be:

• Fraud & Duress - Fraud would be your partner misrepresenting something important to you or cheating you somehow, duress would be if your spouse forced or threatened you to get married,
• Underage marriage - Either you or your mate were under 14 at the time of marriage. That would be considered null and void under state laws,
• Under the influence of alcohol or drugs - If either of you were under the influence when the ceremony took place, that would qualify for a marriage, the influence when the ceremony took place, that would qualify for an annulment,
• Bigamy, or the existence of a prior marriage - If you or your mate had another legal marriage going at the time of your marriage, courts would likely issue an annulment,
• Impotency - If either of the spouses cannot consummate the marriage, the marriage is considered void.
• Incest or Consanguinity - Consanguinity is marrying someone too closely related by blood. A petition for annulment is accepted if the marriage took place between close relatives like, father, mother, nephew, sister, uncle or aunt, which violates laws governing annulments in Alabama. If you have married any such relative, you can get an annulment.
  
  
  
  

Don't confuse a legal annulment of a marriage with a religious annulment. A legal annulment is a legal process, much like filing for separation or divorce, where you must file a petition stating grounds for the claim, and be able to provide evidence supporting your petition.

A religious annulment, most often used by couples married in the Catholic Church, is handled exclusively by the church. Obtaining either form of annulment does not in any way impact the other, although some claim a legal annulment can influence the church process positively. 

Get annulment forms and get it done.

Concerned about custody and visitation battles in the future? Will your spouse try to take advantage of you? Get an online parenting plan and set up the calendar before you get divorced, and adjust it to the court ordered visitation schedule. If your ex knows it's online and you are documenting things, it's less likely you'll be constantly challenged. Click on the demo link to view the program.

[Based on Alabama Code Section 13A, 13-1, 30-1-3, 30-1-19]

Child Support - Who Pays and How Much They Pay

Child support, of all the divorce topics, tends to elevate blood pressure the most. Determining child support is one of the few things about splitting up that is cut and dried. Like many states, Alabama uses a formula, where the parties plug in income and asset details and the child support calculator determines the child support payments.  

Use this child support calculator to determine state guidelines.

Child support is determined with these minimum percentages:

1 child - 20%,
2 kids - 25%,
3 kids - 30%,
4 kids - 35%,
5 kids - 40%, and
6 or more kids 45%
(These amounts are computed using after-tax income)

The family court uses the following criteria in determining the child support payment, taking into account any other prior support obligations:

• The combined incomes of both parents
• Each parent's individual income as a percentage of the combined gross income
• The number of children under age 19
• Any pre-existing child support or alimony obligation 19
• Any work-related child care obligations
• Health Insurance premiums and which parent's obligation they are

Worried about the prospect of custody battles in your future? Want to know how to win a child custody battle?  Don't be blind sided by your ex. Learn the facts by owning a complete Child Custody Library on the best strategies for winning or keeping child custody.

There are two ways in which child support payments are allowed. An Income Withholding Order (IWO) is where the child support amount gets automatically deducted from the non-custodial parent's paycheck, sent directly to the court by the employer, and then distributed to the payee. The second method of passing child support from one to the other is through conventional means e.g. personal checks, money orders, etc. Cash is trash with this method (you have to maintain receipts with cash, and isn't life difficult enough?). Take it from those that have come before you. You want the money to be sent or arrive automatically. In order to have an income order, a petition must be made to the court. Once a judge rules, the amount is considered a temporary amount until the final disposition of your case. The Schedule of Basic Child-Support Obligations will provide an indication of what will be required of the paying parent. The obligation to pay child support in Alabama ends once the child reaches majority at age 19.

It's about priorities. Get a Parenting Plan made right away

If you or your spouse have not filed for divorce yet, and you anticipate it might be weeks or months before that filing takes place, try to agree on a child support amount based on the schedule mentioned above. Presuming you want joint custody, it would be wise to work out the financial details. Once an order for a child support payment and custody arrangement is in place, one of you may be disappointed because it won't have all the details you wanted, so get the Parenting Plan drawn up between you right away.

Do you want to reduce or suspend your support payment during an extended time your child is with you and away from the primary residence e.g. summer vacations? Get specific agreements on what activities the child will participate in and have the final order include them in detail and who pays what. Have the language in a Parenting Plan include any future activities and who pays what amounts.

What about a child support modification down the road? After a divorce is finalized, and a change to an obligation is sought, the state requires that one's financial conditions must have changed enough that those changes would cause an adjustment (up or down) of at least 10% of what is being paid now. What if one of you gets remarried and has another family?

State law consider the original family and the parents' financial responsibility to them first while balancing the needs of all, meaning more money would go to the original family.

Child Support - Divorcing couples must stay within the guidelines set forth by the laws for an Alabama divorce. Child support formulas take into account each party's income, the age of the children and the custody arrangement as well as various other expenditures both parties may be making on behalf of the children.

In the best of all worlds, you and your divorcing spouse will be given the opportunity to fashion a settlement agreement, which will encompass all aspects of settling your marital issues. If you decide to create your own settlement (which must include a Parenting Plan described above), begin by:

• Drafting the agreement yourselves or enlist the help of an attorney,
• Both parties should sign and date the document,
• Head to the family court where the proceedings were initiated. Give an original agreement (no copies) to the clerk of the court and request that the agreement be filed with your court documents,
• Wait for the family court to review your settlement agreement. If the agreement passes muster, (it covers all of the important terms of a divorce and does not violate any state law), the court will include the settlement agreement in the final disposition, and it will become binding to both parties.

More on child support

[Based on Alabama Code Chapter 3 Article 3 Sections 30-3-60 through 30-3-71]

How to file a no-fault divorce in Alabama

In order to have your petition for divorce accepted by the court, you must claim Irretrievable breakdown of the marriage with no hope of reconciliation, sometimes referred to as Irreconcilable Differences. In addition, you must meet residency requirements (lived at least 6 months just prior to the filing).

There are two choices in the manner of filing a no-fault divorce

A simplified divorce is one where you use the Divorce Complaint (Form PS-08) that specifies there are no assets, no debt and no children, and that any personal property (vehicles, furniture, clothing, bank accounts) have been already divided. This form notifies the court that there is no need or request that the court arbitrate any disputes.

A more involved divorce will include assets, debt, children of the marriage and other issues that requires the court to make rulings on disputes. These divorces will begin by filing a Petition for Divorce. This form identifies the reason for divorce, eligibility to file and the issues the petitioner wants the court to resolve.

Alabama does not provide a way for you to download forms to your computer. If you wish to do that, download Divorce Forms now.

Concerned about custody and visitation battles in the future? Will your spouse try to take advantage of you? Get an online parenting plan and set up the calendar before you get divorced, and adjust it to the court ordered visitation schedule. If your ex knows it's online and you are documenting things, it's less likely you'll be constantly challenged. Click on the demo link to view the program.

Filing fees

You must pay to the court a filing fee to begin your divorce. They can vary between counties. Our last check found Shelby county filing fees of $160.00 and Jefferson County is $154.00. Call your county court before taking your divorce filing to them. If you use a third-party process server to serve your spouse, those fees can range from $40-$100.

Divorce Settlement Agreement

A Settlement Agreement is used when you both agree on all matters. This form divides all assets, debt and marital property. If you have children from the marriage, it will include a Parenting Plan as well. The Parenting Plan can be in any written form, although we strongly recommend you use an online plan to preserve it as time goes on (paper copies tend to get lost by one parent), to easily update changes to schedules and activities, and provide continuity and peace of mind to children who access their calendar.

Make copies of all forms

You will need to submit your original papers to file the divorce. The court clerk will require at least one copy of those papers. We suggest you make several copies in advance.

See our discussion on Do-It-Yourself Divorce

Legal Separation - Marital Separation

A Legal Separation is a process where a party to a marriage petitions the court to declare that a party wishes to live a separate life. The process requires a separation agreement which resolves all issues surrounding the marriage except its status as a marriage. Resolved issues include custody of any minor child, financial support of child and/or the dependent spouse, and a plan for dividing the marital assets.

Applicants seeking legal separation often do so for religious reasons (to avoid the stigma of divorce) or to preserve health care or insurance coverage. The status of legal separation makes the parties effectively single and able to separate any and all financial dealings from the other. Either may petition the court to 'convert' the separation to a dissolution (divorce). How to file for separation is similar to how to file for divorce, in that the divorce papers are similar. To get it under way, see our divorce forms section, download a complete packet, then call your local county clerk's office for directions on where to bring the completed forms.

Once a legal separation has been declared, the earnings or accumulations (including retirement benefits) of each party are the separate property of the party acquiring them, and is not considered by the court in any subsequent action (such as a filing for divorce).

Making changes to a separation agreement finalized by the court

The terms of a legal separation can be modified or dissolved only by written consent of both parties and approved by the court or by court order if proof is shown that there has been a material change of circumstances. If your spouse will not agree to written consent, you'll need to make motion to the court and provide proof. [Section 30-2-40]

Worried about the prospect of custody battles in your future? Want to know how to win a child custody battle?  Don't be blind sided by your ex. Learn the facts by owning a complete Child Custody Library on the best strategies for winning or keeping child custody.

[Based on Alabama Divorce Code Chapter 2, Section 30-2-40]

Divorce Settlement - Dividing Property

Alabama is an "equitable distribution" state. This means that the court attempts to distribute the property in a manner that is "fair and just". This doesn't necessarily mean that the property is distributed equally, only that it is done in a way that is fair. If the parties cannot reach a divorce settlement on dividing marital assets, the court will do so. There is no fixed standard to divide property; each case will be decided on the merits, and the trial court's discretion will not be disturbed on appeal without a showing of clear abuse. [Editor's note: make sure you and your lawyer are certain that you leave no stone unturned, as once the ink dries on this issue, it's pretty well set in stone].

Negotiate for the assets that you really want

Decide which marital items are most important to you, and do some horse-trading with your spouse. Fighting over an item can be counter-productive.

Typically, only possessions that legally qualify as separate marital property are absolutely safe from divorce settlements. Assets that often are considered not part of any marital settlement include:

• Assets Acquired Before The Marriage - The property one spouse obtained prior to the wedding date are typically considered NOT subject to division.
• Assets singly owned - Cars, homes and other major purchases not jointly owned or jointly insured fall outside the marital assets class.
• Assets Received Through Inheritance or Gifting - Tangible and intangible property inherited by one spouse through a legally valid document will be set aside from the divorce proceedings.
• Earnings After Separation Filed For - Set aside as singly owned.
• Pension And Retirement Benefits Before Marriage - Excluded from division, although any increase or appreciation after the wedding will be subject to marital sharing.

Worried about the prospect of custody battles in your future? Want to know how to win a child custody battle?  Don't be blind sided by your ex. Learn the facts by owning a complete Child Custody Library on the best strategies for winning or keeping child custody.

Lock up the assets

If you think your spouse might try to hide assets, or spend them down, we suggest you file a petition for a financial temporary restraining order. This order prevents liquidating assets or spending money beyond the basic necessities of daily living. You might first consider allocating enough funds to see yourself through, because the restraining order will apply to you too.

The husband is not liable for the debts or engagements of the wife, contracted or entered into after marriage, or for her torts in the commission of which he does not participate, but the wife is liable for such debts or engagements, or for her torts, and is suable therefore as if she were sole debtor.

[Based on Alabama Divorce Code Chapter 4, Section 30-4-1 and 30-4-5]

Alimony - Spousal Support - Maintenance

Alimony continues to be a factor in many divorces in our state. As a rule alimony occurs in marriages of 12 years or more. Marriages of less time tend to receive alimony at a lesser frequency. Alimony in this state is becoming more a means of rehabilitating a working-aged dependent spouse so that he or she can re-enter the work force and become financially independent, signaling that courts extend fewer lifetime awards than in the past.

Like annulment, alimony decisions are based on case law more so than by statute. It is subjective; determined by the facts of an individual case, and the judges interpretations. Marital misconduct can play a part of any judicial decision. Pre-marital or inherited assets are excluded from any equation for alimony if they meet certain non-mingling requirements. 

The wife may resume a maiden name or any previous surname -  the husband can prevent the wife from continuing with his name. As a comparison, if you were divorcing in Texas, alimony there when awarded is generally for a period of only three years, and is granted as a means to allow the recipient some income as they transition to the work force. We suppose all payers of alimony wish their exes lived in Texas.

Are you or your spouse having issues with alimony? It seems whenever a lengthy marriage ends and one of the parties stayed home (usually to care for children), disagreements about who deserves what assets become inevitable. The truth is this: If you both agreed that one of you would become a stay-at-home parent while the other worked outside the home, all assets earned or received (outside of inheritances) are generally equally shared property of both of you. We will say we've noticed a reversal of this trend in recent years, so ask your attorney. If only one of you funded a retirement account, the family court will force that retirement account to be divided between you two, using a Qualified Domestic Relations Order (QDRO). The calculations needed to divide retirement accounts can be complicated if the parties had retirement accounts prior to the marriage.

The term 'alimony' is becoming less frequently used in divorce. Spousal Support or Spousal Maintenance have gained more favorable usage in recent years.

Temporary Alimony - The court can order support for the reasonable support of either party

Periodic Alimony -  Payment of spousal support that is paid on a regular schedule.

Gross Alimony -  Also referred to as spousal support, this normally is a lump sum payment that compensates one spouse with a distributive share of the marital wealth. The four characteristics of gross alimony are: non-taxable, can be discharged in a bankruptcy, fixed, and determined without considering any of the estate held by the party receiving the alimony.

Worried about custody and visitation issues in the future? Will your spouse try to take advantage of you? Get an online parenting plan and set up the calendar before you get divorced, and adjust it to the court ordered visitation schedule. If your ex knows it's online and you are documenting things, it's less likely you'll be constantly challenged. Click on the demo link to view the program.

Marital misconduct and how it can impact alimony and/or the division of assets

The court has the discretion to make an allowance to you from the assets of your spouse if the court finds evidence of marital misconduct, and any allowance made may not come from assets considered pre-marital. [Section 30-2-51]

Either party may request of the court that temporary support be paid out of the estate of the other spouse during the pendency (time) of your case.

If you are searching for an alimony calculator, you may get disappointed. In general, you won't find many sites purporting to offer an alimony calculator, perhaps because it is so subjective, and the results are dependent on how individual circumstances and a state's case law get applied. In our travels, we have seen a few lawyer's web sites with an alimony calculator on them, but none seemed to leave a lasting impression. In the end, if alimony is an issue, you might benefit by getting a divorce attorney, and that person can provide a clearer picture.

Spousal support terminates when the person receiving the support remarries or cohabits with someone of the opposite sex. [Editor's Note: Be careful about having roommates or borders. Even if it is platonic, you could lose spousal support as a result of a casual cohabitation.] [Section 30-2-55]

Award of legal fees if you've been an idiot held in contempt of court

If a contempt of court citation has been issued, the court can grant a request to the offended party for reasonable legal costs to cover fees and/or attorneys expenses. [Section 30-2-54]

[Based on Alabama Divorce Code Chapter 2, Section 30-2-52 and 30-2-53]

Child Visitation - Co-Parenting

Co-Parenting time is the new visitation paradigm. The court will allow you and your divorcing spouse the opportunity to agree on your own Parenting Plan and Custody Schedule. If no agreement is reached, the court typically awards primary custody to the Mother, and provides for two weekends per month and one evening during the week to the Father. School recesses are also included.

Parenting time on Holidays are often alternating (every other year), and special days like Mother's and Father's days should be decided upon in your plan.

The court takes into consideration what each parent wants, what the child wants (if the child is old enough and/or mature enough), which parent has been the primary caretaker and the parenting skills and abilities of each parent. Any reported abuse is also taken into consideration. Couples should focus on the visitation and shared parenting schedules. Include drop-off and pick-up times and locations. Make certain both parents have access to school records, medical records, teachers and activities. Define when vacations begin and end. Share birthdays.

Plan summer visitation. Above all, be considerate. You'll get the amount of time with each parent settled, but you won't have the summer recesses nailed down. Hint: Create a Child Custody Calendar and take much of the angst out of the process.

Insist on specifics (timing of summer visits, early notification of availability, etc). Get a drop-dead date in writing. You have the opportunity to put together a parenting plan. If you and your spouse are unable to agree on all aspects of a plan, including child support, child custody, child visitation (add in holidays and vacations) as well as medical care and other provisions, the court will create a parenting plan for you. The more detail you have in the plan, the less chance there will be for disputes. A handy Parenting Plan Template can make life far less crazy much easier.

Worried about a custody battle? Don't be blind sided by your ex. Learn the facts by owning a complete Child Custody Library on the best strategies for winning or keeping child custody.

Older kids like to see their visitation schedule on-line. It reduces stress

Carrot and the Stick - If you are concerned that your ex-partner may not live up to his or her end of the child visitation bargain, and you want to keep close track of all parenting times, activities and missed visits, Parenting Time© software is the ideal tool for you. Their on-line software offers, among other things, an on-line calendar for tracking and journaling parenting time. You can send to your ex the calendars for upcoming months to prompt him or her to take good parenting as seriously as you do, and at the same time demonstrate that you are keeping close track of all parenting time interactions. If he or she knows there is documentation, the game playing and threats of custody battles tend to go away. You now have control.

Be aware that you have to guide your side of the divorce. Don't rely that your attorney will think of everything. You set the course; your lawyer navigates. If you are the type of person that wants to be sure all avenues are explored, you can do your homework cheaply using Child Custody Strategies.

[Based on Alabama Code Chapter 3 Articles 7 and 7a]

Grounds For Divorce

An Alabama divorce is granted for no-fault grounds as well as fault grounds. The no-fault ground for divorce is known as Irretrievable breakdown of the marriage with no hope of reconciliation. Fault grounds include:

• physically and incurably incapable of consummating the marriage,
• adultery,
• voluntary abandonment by either spouse for one year prior to the filing of the complaint,
• when either spouse is imprisoned for a felony conviction for a period of two years and the actual sentence is seven years or more,
• the commission of crimes against nature,
• before or during the marriage,
• drug or alcohol addiction,
• complete incompatibility- can no longer live together,
• insanity - committed to an institution for 5 years and incurably insane,
• wife was pregnant at the time of marriage without the husband's knowledge,
• in favor of either party when the other has committed actual violence or placed the party in reasonable apprehension of such violence,
• in favor of the wife when she has lived separate and apart from the husband without his support for two years prior to the filing of divorce, and she is a resident of Alabama,
• being an idiot  (We're kidding about this, but you get the idea)

[Based on Alabama Code Chapter 3 Article 1 Section 30-2-1]

Residency - You Must Be A Resident Of Alabama

Residency is important for jurisdiction (which court hears the case and what laws get applied). If both are residents of Alabama, either can file with the circuit court in the county where they reside. If one is a resident of another state (meets that state's residency requirements), that person may file in that out-of-state jurisdiction.

When the defendant is a non-resident, the other party must have been a bona fide resident of Alabama for at least 6 months. Dissolution must be filed where the separation occurred, or if the defendant is a non-resident, then in the circuit court of the county in which the other party to the marriage resides.

If one party does not meet Alabama residency guidelines, and the other does, they can consider having the resident file if timing is a concern.

Put another way, state law lets you file for an Alabama divorce in either a. the county where you and your spouse separated or b. the county where your spouse now lives. It also lets you file where you live if your spouse does not live in Alabama.

Filing a divorce action first isn't necessarily an advantage if both reside in the same locale. If fault is claimed, the petitioner has the burden of proof to provide evidence to convince the court a particular behavior occurred. 

Holiday Sale! Hidden Cameras under $75 at BrickHouseSecurity.com!

Worried about the prospect of custody battles in your future? Want to know how to win a child custody battle?  Don't be blind sided by your ex. Learn the facts by owning a complete Child Custody Library on the best strategies for winning or keeping child custody.

[Based on Alabama Divorce Code Chapter 2, Section 30-2-5]

Using A Mediator To Help Decide Disagreements With Your Spouse

The court may order, at any time prior or subsequent to a divorce decree, that any party or parties and any of their children be interviewed by a psychiatrist, licensed psychologist or other trained professional in family counseling, for the purpose of determining whether it is in the best interests of any of the parties' children that the parties and any of their children have counseling regarding matters of legal custody, residency, visitation or parenting time.

Costs of the counseling and/or mediation will be borne by both or either party. The court may require the parents to attend parent education classes, and require them to be informed about how to prepare a parenting plan, what impact a family dissolution can have on children, the impact of domestic abuse on children, and any procedures that may help them arrive at an agreement.

If parents are unable to resolve issues and agree to a parenting plan, the court may require mediation, unless mediation is determined inappropriate in the particular case.

Worried about the prospect of custody battles in your future? Want to know how to win a child custody battle? Don't be blind sided by your ex. Learn the facts by owning a complete Child Custody Library on the best strategies for winning or keeping child custody.

[Based on Alabama Divorce Code 6-6-20]

Grandparents - Visitation With The Grandkids

At the discretion of the court, grandparents may be awarded visitation privileges of minor grandchildren. You should consider having details of grandparents visitation in place before the final decree gets gaveled, otherwise, it may be back to court you go (legal fees). Involved grandparents can expect the courts, in general, to be favorable to petitions requesting time with the children. It goes without saying that a good relationship is always better than a court order. The shame is a fairly high percentage of these cases experiences alienation from the custodial parent. 

Visitation rights for grandparents depend on the particular situation of the grandchild and the grandchild's best interests. To even get to a hearing, one of these conditions must exist:

• The parents are divorced
• A parent or parent is deceased
• The child was born out of wedlock
• The child was abandoned by a parent
• The grandparents have been denied visitation.

Factors that may influence a decision to grant visitation can include:

• The willingness of the grandparents to promote the relationship between the grandchild and his or her parents
• The wishes of the parents
• The preference of the child
• The mental and physical health of the child
• The mental and physical health of the grandparents
• Any evidence of domestic violence inflicted by one parent upon the other parent or the child

When a child is given up for adoption, all rights are terminated.

Worried about the prospect of custody battles in your future? Want to know how to win a child custody battle?  Don't be blind sided by your ex. Learn the facts by owning a complete Child Custody Library on the best strategies for winning or keeping child custody.

[Based on Alabama Code Chapter 3 Article 1 Sections 30-3-4 and 30-3-4.1]

Waiting Period For Filing Or Remarriage

Divorce petitions must be filed with the court at least 60 days prior to any decree of dissolution. In cases where separation is requested, 60 days of residency must have occurred immediately prior to the filing. In either case, the court has the option to declare an emergency and waive that 60 day waiting period requirement.

At least 60 days must pass from the date of divorce in order for either person to marry again except to each other (Section 30-2-10 ). The court can prohibit a person from remarriage in certain circumstances. Some determined parties who have been prohibited from marrying again have been known to marry outside this state.

Worried about a custody battle? Don't be blind sided by your ex. Learn the facts by owning a complete Child Custody Library on the best strategies for winning or keeping child custody.

Divorce after being separated for 2 years or more

If you've obtained a divorce from bed and board (a legal separation), and it has been at least 2 years since then, you can file for divorce and your spouse's grounds for divorce won't constitute any defense to your petition. [Section 30-2-2]

[Based on Alabama Divorce Code Chapter 2, Section 30-2-10]