How to file a divorce in Alabama

Getting divorced in Alabama is similar to getting divorced in most other states. A divorce for any married couple will accomplish two things: (1) severing the marital relationship, and (2) dividing assets and debts. If they have been married for a significant length of time and one of them will be unable to be self-supporting after the divorce, the issue of alimony may also arise. If there are minor children, they will also need to resolve issues of child custody, visitation, and support.

Residency and where to file

If you and your spouse currently live in Alabama, there is no residency time period. If only you live in Alabama, you must have lived there for at least six months before you can file for divorce. If your spouse lives in Alabama, you will file in the county where your spouse resides. If your spouse no longer lives in Alabama, but was living in the state when you separated, you will file in the county where you both lived at the time of separation. If neither of the previous situations apply, you will file in the county where you live.

Procedures

The most simple procedure is for an uncontested divorce. This is where you and your spouse can reach an agreement about the division of your property, and, if you have any children, what arrangements will be made for them. You begin the divorce procedure by preparing a document called a Complaint for Divorce, along with various other supporting documents. For an uncontested divorce, one of these documents will be a marital settlement agreement outlining the division of assets (and your agreement regarding any children). These documents are filed with the court, and copies of them are provided to your spouse. You will attend a court hearing, at which time the judge will make sure that all of your paperwork is in order, perhaps ask you a few questions, and enter your Judgment of Divorce from Bonds of Matrimony.   

Grounds for divorce

Grounds for divorce are legally recognized reasons to get a divorce. This is the justification for severing the marital relationship. Alabama, like most states, has what are commonly called no-fault grounds for divorce, and several traditional fault-based grounds.

To get a no-fault divorce in Alabama you need to state in the Complaint for Divorce either that “there has been an irretrievable breakdown of the marriage and further attempts at reconciliation are impractical or futile and not in the best interests of the parties or the family,” or that there is “a complete incompatibility of temperament that the parties can no longer live together.”

There are also numerous fault-based grounds for divorce, such as adultery, drug or alcohol addiction, mental illness, and physical abuse. However, in most cases, there is no reason to use any of these, since they add complexity to the process by requiring proof.

Property division

A divorce involves dividing property and debts between you and your spouse. To divide property and debts, Alabama courts will determine what is “equitable,” or fair. Generally, you will be able to keep any property that you owed before you got married, or that you acquired at any time from a gift or inheritance (unless it was used for the benefit of both parties). 

Alimony in Alabama

Alimony is only awarded if the party seeking it does not have sufficient property or income to be self-supporting. According to Alabama divorce law, the judge must consider: (1) the value of each party’s estate, and (2) the financial condition of the family of the spouse requesting alimony. Property acquired before marriage is not considered unless it was regularly used for the benefit of both parties. Fault (such as adultery or abuse) on the part of the party seeking alimony may limit or bar alimony. Alimony ends if the spouse receiving it remarries or begins “living openly or cohabiting with a member of the opposite sex.”

Child custody in Alabama

If you and your spouse have any minor children, there will have to be a custody determination. Traditionally, one parent was awarded custody, and the other was given visitation rights. The children lived most of the time with the custodial parent, who made the day-to-day decisions regarding the children. The non-custodial parent was allotted certain times to have visitation with the children. Both parents were involved in major decisions regarding the children, such as those regarding their medical care. The modern trend is to try to keep both parents active in the lives of their children, which has led to the concept of joint custody. It all still comes down to figuring out how the children’s time will be divided between the parents, and how decisions will be made.

If you and your spouse cannot reach an agreement on custody, the judge will make a decision based upon what “may seem right and proper, having regard to the moral character and prudence of the parents, and the age and sex of the children.” Alabama law specifically states that if the wife abandons the family, the husband will have custody if the child is at least age seven and the husband is a suitable parent.

The judge is also required to consider joint custody, and here the Alabama law gives a little more guidance. The judge must determine what is “in the best interest of the child,” considering:

1.  the agreement or lack of agreement of the parents on joint custody,
2.  the past and present ability of the parents to cooperate with each other and make decisions jointly,
3.  the ability of the parents to encourage the sharing of love, affection, and contact between the child and the other parent,
4. any history of or potential for child abuse, spouse abuse, or kidnapping, and
5.  the geographic proximity of the parents to each other as this relates to the practical considerations of joint physical custody.

If both parents ask for joint custody, it must be granted unless the judge specifically states why it is not granted. If you and your spouse desire joint custody, you will need to have a written agreement that includes such things as:

1. the care and education of the child,
2. the medical and dental care of the child,
3. holidays and vacations,
4. child support, and
5. which parent will have primary control over the child’s academic, religious, civic, and other activities.

Child support in Alabama

A decision must also be made about how the children will be financially supported. This almost always comes down to one parent paying money to the other. Child support is determined by taking into account the needs of the child, and each parent’s relative ability to meet those needs. This is determined by reference to the Alabama child support guidelines.

Miscellaneous matters

A final judgment of divorce may not be entered until at least 30 days after the complaint is filed. As part of a divorce in Alabama, the wife is entitled to restore her former name. The husband may prevent the wife from using his first name or initials (for example, John M. Smith may prohibit his ex-wife from using “Ms. John Smith” or “Ms. J.M. Smith”). Neither party may get married for a period of 60 days after the judgment of divorce is entered, or while any appeal is pending.

If you are considering an online divorce, LegalZoom can help you get the divorce documents you need. We help you fill out the paperwork and check it for completeness and accuracy, and provide step-by-step instructions for filing and completing your divorce