Alabama Divorce Laws- Dissolution of Marriage

Alabama Child Custody

Chances are you and your affectionate and reasonable not so loving spouse have discussed child custody, parenting time, parenting skills and maybe even discussed (argued about?) sole custody as a part of being divorced. Similar to AL child support, child custody gets determined with 'the best interests of the child' considered first. State law provides that you and your spouse are given the opportunity to

put together a Parenting Plan, which will include Child Custody, an Alabama Visitation Schedule and a Custody Schedule. If you and your spouse cannot complete a parenting agreement, the family court imposes its own plan.

State laws require that minor children have frequent and continuing contact with parents who have demonstrated adequate parenting skills and can act in the best interest of their children. Divorce laws in Alabama encourage parents to share in the rights and responsibilities of rearing their children after the parents have separated or completed a dissolution of their marriage, and divorced.

The family court will in every case consider joint custody but may award any form of custody, which is determined to be in the best interest of the child. In determining whether joint custody is in the best interest of the child, the court will consider the same factors considered in awarding sole legal and physical custody and will consider all of the following factors:

1. The past and present ability of the parents to cooperate with each other and make decisions jointly.
2. The degree of agreement or lack thereof on joint custody issues.
3. Any history of or potential for child abuse, spousal abuse or kidnapping.
4. The ability of each parent to encourage a loving and nurturing relationship with the other parent.
5. Any history of or potential for child abuse, spousal abuse or kidnapping.
6. The geographic proximity of the parents to each other as this relates to the practical considerations of joint physical custody

Mom gets the child custody award far more frequently than Dad does. This is due partly to out of touch family courts not understanding men's capabilities, and partly the presumption that children need the Mothers in the early years, and that Mothers are inherently better at parenting. In most cases, the Mother must be proven unfit before a court will rule in favor of primary custody for Dad.

Furthermore, Alabama divorce law mandates the following with regard to Joint Custody—

'It is the policy of this state to assure that minor children have frequent and continuing contact with parents who have shown the ability to act in the best interest of their children and to encourage parents to share in the rights and responsibilities of rearing their children after the parents have separated or dissolved their marriage. Joint custody does not necessarily mean equal physical custody.'

This can be interpreted as a policy to keep both parents in their children's lives unless there is evidence that one or both parents pose a risk to the child.

Be aware of what types of behavior can jeopardize getting the custody order you want from the family court. Moving out of the home your children reside in can be considered "abandonment" and will impair one's chances at custody later on. Some more common obstacles to custody can include: domestic violence with police reports, not paying an adequate amount of support to the custodian, the use of illegal drugs or controlled substances, an inconsistent employment record, and much more.

The point is that if your marriage was tumultuous, and/or if you left the family home, or your behavior has been such that a court might be concerned, your chances of primary custody are slim. Courts do award children to Fathers more in recent years, but the majority of the rulings continue to favor the Mothers.

Co-parenting equally, where the child spends 1/2 the month with each parent (or alternates weeks) is becoming more common, but carries with it its own set of challenges. If you are considering co-parenting, it pays to consult with a child psychologist or another professional in this area. Children's preferences as to where they want to live are considered by the family law judge (in many cases) once they reach their teenage years. Custody determines how the parties will specifically parent the children, both legally and physically.

	Joint Custody- Alabama courts prefer this arrangement, where both parents share joint legal and joint physical custody of the children and equal responsibilities regarding all matters.
	Joint Legal Custody- Both parents have equal rights and responsibilities for major decisions concerning the child, including, but not limited to, the education of the child, health care, and religious training. The court may designate one parent to have sole power to make certain decisions while both parents retain equal rights and responsibilities for other decisions.
	Joint Physical Custody- This does not mean that the children must spend exactly the same amount of time with each parent. It does mean that the children will spend substantial time with each parent as determined by each parent's schedule.
	Sole Legal Custody- One party makes all the major decisions conveyed by Alabama law for the minor children. The other parent is allowed a voice, but the final decisions rest with the parent who has sole legal custody.
	Sole Physical Custody- The children live with one parent exclusively. This parent is sometimes referred to as the sole custodian. The other parent may have visitation as it may be agreed upon by the parties or decreed by the court.

Alabama Child Support

Alabama child support, of all the divorce topics, tends to elevate blood pressure the most among the parties in Alabama. Paradoxically, determining child support in Alabama is one of the few things about splitting up that is cut and dried. Like many states, Alabama divorce laws use a formula, where the parties plug in certain financial details and the child support calculator determines the child support payments.

If you use this child support calculator, be sure to bookmark this page first. Alabama child support is determined with these minimum percentages:

one 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

There are two ways in which child support payments are allowed. An Income Withholding Order (IWO) (more common) is where the child support amount gets 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 AL 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.

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 an Alabama 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 Alabama child 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 an Alabama divorce is finalized, and a change 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?

Alabama divorce laws 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.

If you are searching for a child support calculator that provides an idea about what amount of child support payments might be ordered, do a search on Google for that term, or visit this child support calculator.

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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. Typically, 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 on 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 parameters (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.

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, Custody XChange© 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 serious 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.

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Spousal Support
Alimony
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 Alabama (sometimes called spousal support or maintenance) 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 divorce statutes. 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.

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 equal and shared property of both of you. If only one of you funded a retirement account, the family court will force that retirement account to be divided between you, using a Qualified Domestic Relations Order (QDRO).

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

	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.

Grounds For Divorce

An Alabama divorce is granted for fault grounds as well as no-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)

If you file for dissolution this year and become part of the divorce statistics, and complete the process, you will be one of more than 20,000 Alabama couples immersed in the process. Make sure yours doesn't become a case study on what NOT to do by doing your homework, researching the issues, and being involved in your's and your attorney's 'game plan'. You may not know what you don't know, but more importantly, you don't know what your attorney doesn't know. For the cost of less than an hour in lawyer fees, you can become a ninja warrior.  

Marriage Annulment
Marital 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 a marital annulment. The annulment process is based on case law (much like alimony is in many states). Conditions or grounds that would permit filing for an annulment in Alabama would be:

	Fraud & Duress-Fraud would be your mate 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 annulment 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 a marriage 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. You can also file for an annulment according to Alabama annulment laws using this ground:
	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 in Alabama according to Alabama annulment statutes.

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.    

Mediation
Marriage Counseling

Alabama divorce statutes provide for what is called "Mandatory Mediation Prior to Trial." Three conditions when divorce mediation is mandatory: 1.) At any mediation, the trial court may, on its own motion, order mediation. The trial court may allocate the costs of mediation, except attorney fees, among the parties. 2.) In the case of domestic violence issues, the court will not order mediation and will allow another remedy (such as a protective order) to be put in place before considering mediation. The court will not order marriage counseling but may suggest it. DRS believes counseling can be a great help in most cases (It can help you resolve issues so you can move on, with or without your loving intractable spouse. You can't go around this issue (divorce); you must go through it, and unless you have several divorces under your belt, you're going to need a guide.     

Legal Separation
Marital Separation

You may petition for an Alabama legal separation and the family court will grant a legal separation to a party in the divorce if:

	the court has proper jurisdiction (the person filing must do so in the correct locale/county),
	a statement is included that the marriage is irretrievably broken or there exists a complete and total incompatibility, and
	the court is able to consider and approve of a Parenting Plan submitted by the parties that will provide for child support and custody of any children of the union.

As in all decrees of separation in marriage, it does not alter the married status of the parties. If you both agree to the separation, and you do so in writing, and after the court enters an order of legal separation, all of the following provisions will come into play:

	All earnings or accumulations realized by each spouse after the date that the court enters the decree of legal separation are the separate property of that party;
	A spouse may sell or otherwise dispose of his or her real estate without the signature or consent of the other;
	Each spouse may waive all rights to inheritance from the other spouse.

Alimony may be awarded at any time prior to the final decree, and can be in the form of cash or real property or any other asset the courts deems appropriate. There is no set formula for determining alimony by the court. As with most states, alimony is more a function of case law than specific statutes.

Retirement assets or benefits may be divided provided the following conditions are met:

	The parties have been married for a period of 10 years during which the retirement was being accumulated,
	The court shall not include in the estate the value of any retirement benefits acquired prior to the marriage including any interest or appreciation of the benefits, and
	The total amount of the retirement benefits payable to the non-covered spouse shall not exceed 50 percent of the retirement benefits that may be considered by the court.

Waiting Period

Waiting period: Alabama divorce law requires that thirty (30) days elapse from the filing of the    summons and complaint before a final judgment of divorce be entered. Alabama further requires that neither party to the divorce may remarry, except to each other, until sixty days after the judgment of divorce is entered. If an appeal of the judgment of divorce is taken, the parties may not remarry, except to each other, during the pregnancy of the appeal.

Grandparents Rights

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.    

Divorce Settlement
Distribution of Assets

Alabama is known as an "equitable distribution" state. If the parties cannot reach a divorce settlement on dividing marital assets, the court will do so. Alabama divorce laws determine that the division and settlement of property and debts between the divorcing parties should be fair and equitable, but not necessarily equal. The parties have the opportunity to come to a divorce settlement and not leave that settlement up to the court. There is no fixed standard to divide property; each case will be decided on its facts, 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].

Typically, only possessions that legally qualify as separate property according Alabama's definition 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.

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.

Did you come into this marriage owning a house? Concerned about the equity in that house that you brought into the marriage? Worried about having a pre-marital asset be subject to a divorce settlement? Here's how it works generally. What you brought into the marriage is usually all yours. However, any appreciation of the house or the property value is normally treated as a "marital asset", meaning that you will likely forfeit a third to a half of that appreciation to your spouse in the divorce.

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Residency Requirements

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 be a bona fide resident of Alabama for 6 months. Dissolution must be filed where the separation occurred, or if the defendant is a nonresident, 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.   

How to file for divorce yourself DIY Divorces

Should you and your spouse file for divorce & complete the divorce process without the help of (and the costs associated with) an attorney? The answer to that will depend on your specific situation.

How much does it cost?

In Alabama, the cost of filing divorce papers with the family court can range from $150-$250, depending on the county you live in.

Where do you file?

In most counties in the state, you file your divorce papers in circuit court. Some counties require that you file in the part of circuit court called family court or domestic relations court. Call your local courthouse and ask. See the above section Residency Requirements to determine where you must file your divorce papers.

Are these filings fees paid up front?

Typically they are, but you can file a hardship affidavit at the beginning of the process. Ask the circuit court to tell you what conditions need to be present in order for a hardship request to be granted. Granting hardship can delay the full payment of the filing fees until the conclusion of the divorce. These fees will need to be paid, however, to complete the divorce. Links to Alabama counties follow this section.

What forms will you need?

You will need the following divorce forms to file for a divorce. A link to buying them can be found on this page, near the top, in the section entitled Divorce Forms. All of these forms come with the Divorce Forms Combo Package listed above.

• Complaint for Divorce
• Appearance, Consent, and Waiver form
• Decree of Divorce
• Marital Settlement Agreement
• Financial statement
• Certificate of Divorce

What are the steps?

	Have your spouse sign the Appearance, Consent, and Waiver. You must furnish to your spouse a copy of the dissolution complaint you are filing papers with the court.
	Go to the Clerk of the Court and pay the filing fee for divorce and file the following documents: Complaint, Appearance, Decree, Agreement, Statement, and Certificate of Divorce.
	A hearing will be scheduled and you will be notified of the date. You MUST both appear at that hearing.
	The judge will confirm with you your intent to divorce at the hearing
	The court will mail the final decree to you.

A word on the Settlement Agreement- If there is a place where the process gets bogged down, it is resolving marriage settlement issues. They must be resolved and agreed upon to move your divorce filing to a successful conclusion (without legal fees). The issues are:

Equitable Distribution of Assets
Equitable Distribution of Liabilities
A parenting or co-Parenting Plan
What the Visitation Agreement will be
Child Support 
Spousal Support (Alimony)

Links to counties:

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