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Alabama divorce laws

Child Support

The child support calculation is one of the few aspects of the divorce process that doesn't leave much wiggle room. The Feds and your Alabama state legislators and their divorce statutes have made its computation little more than a mathematical formula. Think cookie-cutter. Boiler-plate. One size fits all. The child support amount the non-custodial pays is based on the "income shares" model. What's that mean specifically? Alabama's legislative statutes have determined the guidelines to be based on the obvious. Here's the criteria:

• 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
• Any work-related child care obligations, subject to certain limitations
• Health Insurance premiums and which parent’s obligation they are

Divorce laws have child support paid one of two ways. More often it is an Income Withholding Order (IWO) whereby the child support gets deducted from the payer’s paycheck, sent directly to the court by the employer, and then distributed to the payee. This tends to reduce or eliminate the hassles. It's a win-win for everyone.

The second method of passing Alabama 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, and isn't life difficult enough?).

Count on a change of heart (after all, isn't this why you're here?). If one wants to change the terms of child support, its off to court you go. Petition the Court. Ask that child support be reduced or increased. Expect more hand-wringing, and likely more legal cost. Do what you can with your attorney to set parameters before the divorce is final. Remember this: the more agreement you have in the final order, the less disagreement later. Have it written into your agreement that the paying and receiving of child support is independent of 'visitation' (don't you hate that word?) rights. Determine in the agreement if an adjustment to child support amounts is necessary when the non-custodial parent has more time with the children than the scheduled time allows (the kids' vacations, your vacation, summer recess, etc). What exactly does child support cover? What doesn't it cover? What about health insurance? What does each parent agree to do if its an HMO or PPO? Have other expenses associated with child support e.g. dental costs been agreed upon? When the medical insurance requires the designation of a family doctor, how will that be agreed upon? Get in writing the terms of who pays and how much they pay for transportation costs. What if someone moves? Who pays what?

Understand that a change to child support amounts can and does occur if the re-calculation is 10% or more different (a formal request to the court must be made).

What if he or she begins a new family? How are the original children protected? The answer is that the state considers the original family and the parents' financial responsibility to them first while balancing the needs of all. If the incomes of the parents falls outside the $6,600 to $120,000 per year range, courts have flexibility to deviate outside the guidelines. The guidelines per child are, in general (from gross income):

Did you know The State of Alabama collects and distributes child support payments using a system called the Alabama Location Enforcement Collection System (ALECS)? Payments are sent to the Alabama Child Support Payment Center and entered into a computer system, and then distributed to the payee.

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.

You may file the action in the circuit court of the county in which the defendant resides, or in the circuit court of the county in which the parties resided when 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.

Filing an 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.

Child Custody

Perhaps the most pressing unanswered question at the outset is: who will get custody? While the court will consider joint child custody in every case, it will make its final determination as to the type of custody to be awarded based upon the “best interests of the child”. Here is some of what they may consider:

• The past and present ability of the parents to cooperate with each other and make decisions jointly.
• The degree of agreement or lack thereof on joint custody issues.
• The ability of each parent to encourage a loving and nurturing relationship with the other parent.
• Any history of or potential for child abuse, spousal abuse or kidnapping.
• The geographic distance between the parents

Within the Alabama Code there exists a state policy on joint custody. It states: "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."

Courts generally view joint custody as being in the best interest of the child, and will award joint custody unless it makes a specific finding as to why it should not.

The court may grant the custody and education of the children of the marriage to either parent, taking into account the moral character and prudence of the parents and the age and sex of the children. During the process and before the final decree, the court may make orders with respect to the custody of the children as their safety and well-being may require. But in cases of abandonment of the husband by the wife, the father shall have the custody of the children after they are 7 years of age, if he is a suitable person to have such charge. [Editor's note: Yes, we see this rule as archaic. If the mother has abandoned them, and the father can't/won't have custody until age 7, who gets harmed here?]

Visitation

Child custody and visitation/parenting time can come in many forms. Joint custody and sole custody; legal custody and physical custody; in Alabama, the parties will decide if they can create a Parenting Plan, and if they cannot agree, have the court decide. 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 abilities of each parent. Any reported abuse is also taken into consideration. Couples should focus on the visitation/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. If you and your spouse cannot agree, the court will award the non-custodian, in most cases, every other weekend, one or two nights per week (not overnight), alternating holidays, Mother's and Father's Days, and a month in the summer.

Alimony/Maintenance/Spousal Support

Divorces in Alabama contain alimony where appropriate, and usually see it occur in marriages of twelve years or more, or when the economic potential and/or income for either party is about equal. Alimony 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 independent. Like annulment, alimony decisions are based on case law rather 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. The wife may resume a maiden name or any previous surname-the husband can prevent the wife from continuing with his name.

Grounds for Divorce

The grounds upon which Alabama law permits a judgment of divorce to be granted include;
1. When either party was physically and incurably incapable of consummating the marriage
2. For adultery
3. For voluntary abandonment by either spouse for one year prior to the filing of the complaint
4. When either spouse is imprisoned for a felony conviction for a period of two years and the actual sentence is seven years or more
5. The commission of crimes against nature, before or after the marriage
6. Drug or alcohol addiction
7. Complete incompatibility-can no longer live together
8. Insanity-committed to an institution for 5 years and incurably insane
9. Irretrievable breakdown of the marriage-no hope of reconciliation
10. Wife was pregnant at the time of marriage without the husband's knowledge
11. In favor of either party when the other has committed actual violence or placed the party in reasonable apprehension of such violence
13. 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.

Marital Annulment or Marriage Annulment

There is no statute governing annulment in Alabama. The process is based on case law (much like alimony is in many states). Conditions that would permit an annulment would be similar to other states: void marriages and voidable marriages; those that had elements of fraud or concealment, or where coercion and the lack of an ability to be aware of what one was doing.

Mediation or Counseling

Alabama has a divorce statute called "Mandatory Mediation Prior to Trial." Three conditions when mediation is mandatory:

1. At any time where all parties agree
2. At either party's request. The party asking for mediation pays the costs of mediation, except attorney fees, unless otherwise agreed
3. If no party requests 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

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.

Marital Separation or Legal Separation

Alabama recognizes legal separation and will grant a legal separation to a party in the divorce if the court has proper jurisdiction (whoever filed did so in the correct locale), that 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, it does not alter the married status of the parties.

The court will grant a legal separation if all of the following requirements are satisfied:
1.) Jurisdictional requirements for the dissolution of a marriage have been met
2.) The marriage is irretrievably broken or there exists a complete incompatibility or one or both of the parties desires to live apart
3.) To the extent that it has jurisdiction to do so, the court has considered, approved, or provided for child custody, and has entered an order for child support. Upon written consent by both parties, after entry of a decree of legal separation, all of the following provisions will come into play: 1. All earnings or accumulations realized by each spouse after the entry of the decree of legal separation are the separate property of that party; 2. A spouse may convey his or her real estate without the signature or consent of the other; 3. 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. Retirement assets or benefits may be divided provided the following conditions are met: a. The parties have been married for a period of 10 years during which the retirement was being accumulated, b. 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 c. 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 pendancy 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).

Divorce Settlement

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 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 make certain you leave no stone unturned, as once the ink dries on this issue, it's pretty well set in stone]. Did you come into this marriage owning a house? Concerned about the equity in that house that you brought into the marriage? 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.