BASIC ALABAMA DIVORCE LAW

     "This is what you've chosen", a judge once told both parties during a temporary divorce hearing. Neither of the parties was happy about the temporary child visitation order entered by the judge and during a short hearing, the judge really came down hard on both parents.  You have chosen the decision to divorce, the judge said.  "This is the new reality for you, get used to it, this is of your own making."

 

     A divorce is one of the most emotional and stressful legal matters in which you can be involved.  Decisions are always best made by calm rational thinking.  Too many times, especially when children are involved, both parties make rash, off the cuff, emotional driven decisions that have negative results.  Let me help you make good sound decisions that will have positive results for you and your children.

FOUR MAIN ISSUES IN DIVORCE

 

1.  Severing the Bonds of Matrimony / Grounds for Divorce

 

  • Grounds for Divorce

 

     The basis or cause for which a court may grant a divorce is commonly referred to as a “grounds” for divorce. There are many different grounds for divorce in Alabama all of which are created by statutes. The most commonly used ground is incompatibility, which is easy to prove.  Neither party has to how "fault" to get a divorce, but "fault" by one party can be important with others issues such as custody and division of property.  There are many other grounds for divorce.

 

  • Severing the marital bonds

 

     This is the bond between husband and wife that will be severed after the court enters the decree or order divorcing you.  This severance only applies to the marriage, not the property or children, those are separate issues.  Many times parties can have the bonds of matrimony severed and be divorced while the issues of property, custody and child support remain open.

 

           2.  Property

 

  • Equitable Distribution

 

     This means that the division of property and debts between the divorcing parties should be fair and equitable, but not necessarily equal. There is no fixed standard to divide property, each case will be decided on its facts by the judge.  That decision will be hard to have changed by an appeals court. The division of property must be graduated according to the particular facts and circumstances of each case.  What you think is fair and equitable may not be the way the judge sees it.  The court may divide jointly owned property according to the equities of the case. Trial judges many times makes decisions that do not seem either fair or equitable to either party.  Without showing the judge completely missed the mark, his/her decision will be final.

 

  • Separate Property

 

     The “marital estate” is the legal entity created by law which consists of the property and debts of the divorcing couple. Some property or debt is not included in the marital estate. The question here is whether property contributed by one of the parties should be included in the marital estate for purposes of an equitable division.  The key here is whether the property in some way became part of the marriage. Generally, separate property acquired before the marriage or by gift or inheritance during the marriage may be excluded from the marital estate if the property was never really part of the relationship.  If one spouse never uses that property and helps with debt or upkeep, it would generalyl not be part of the marital estate.

 

  • Length of the Marriage

 

     Generally, property division involving a short-term marriage is relatively straightforward.  When few or no joint assets have been accumulated, the tendency is to “unwind” the marriage, that is, to return the parties to the financial position in which they arrived at the marriage.  The more the parties have “co-mingled” their assets, however, the more difficult this “unwinding” may become.

 

  • Pets

 

     Plainly stated, the dog is part of the marital property and has to be equitably divided according to its value, if value can be assigned. Receipts must be shown proving which spouse has been the functional owner of the pet. In other words, the spouse that has paid for things such as medical treatment, training, grooming, maintenance and upkeep is the one who is considered the owner and gets to keep the dog. In some rare cases, tests have been administered based on the “best interest” theory for custody, which measures the degree of attachment between pet and human.

 

           3. Child Custody

 

  • Custody as Between Parents

 

     Before 1981, Alabama presumed that young children should be with their mothers.  It was called the “tender years” doctrine.  It has now been rejected by the courts and it is now presumed that both parents have equal rights to custody of the children without presuming that one is automatically more fit than the other.  Today the court will look at what is in the “best interest” of the child on a case by case basis.

 

  • Below is a list of factors the judge will consider in making a decision about custody. Regardless of these factors, today judges are required to first assume that it is best for both parents to have joint custody.

 

     Sex and age of each child.

     The emotional, social, moral, material, and educational needs of each child.

     The respective home environments offered by each party.

     The characteristics of each parent (age, character, stability, mental and physical health)    

     The ability to provide emotional, social, moral, material and educational needs.

     The relationship between each child and each parent.

     The relationship between the children.

     The effect on the child of disrupting or continuing an existing custodial status.

     The preference of each child, if the child is of sufficient age and maturity.

     The recommendation of any expert or independent investigator.

     Available alternatives.

     Any other relevant matter the evidence may disclose. 

 

  • Preference of the Child

 

     The older and more mature a child is, the more likely that child’s preferences will be given weight in deciding custody. Generally, if a child is under 7 years old, what he or she wants doesn’t really matter.  At age 14 or above, the preferences of the child is given a lot of weight by the judge and if the child acts mature. his/her wishes will many times make all the difference. Between ages 7 and 14, there is a sliding scale where the weight given the preferences of the child will vary depending on the age, maturity, and perceived independent judgment of the child.

 

  • Custody Modification

 

     Once custody has been granted to either party (not true joint custody) it’s very difficult to get a court to transfer custody to the other parent.  The parent wanting to modify custody must prove my evidence in court that uprooting the child from the prior custody arrangement will offset uprooting the child.  The court will assume the uprooting the child is not good. Frequent disruptions are to be condemned.” The Alabama Supreme Court has stated, “the parent seeking the custody change must show not only that [he or she] is fit but also that the change of custody “materially promotes” the child’s best interest and welfare.”

 

  • Visitation

 

     Trial courts have broad latitude in providing for visitation rights. If neither party can agree, the court will order "standard visitation" which is the court's own visitation plan.  Sometimes children express fears or unwillingness to visit their other parent without any reasonable basis or foundation.  In these cases, the trial court is within its discretion to order visitation even over the child’s objections.  Where one parent interferes with the orderly visitation schedule, the court may require that parent to post a performance bond to guarantee compliance with the court’s orders.

 

          4. Child Support

 

  • Alabama Child Support

 

     Child support is not only based on the idea that both parents are legally obligated to provide care for their children, but also that children deserve to have the same standard of living they would have had if their family unit had stayed intact. When parents no longer live together, there are many issues that arise around the issue of child support.

 

  • Child Support Calculations

 

     In general, the gross income of both parents. Daycare and medical expenses are taken into account when determining the amount of child support the non-custodial parent will have to pay each month. As stated above, attempting to maintain the standard of living they children had become used to is the key.

 

  • How Payments are Made

 

     Child support payment can be made directly from one parent to the other, direct payment to the Alabama Child Support Center or by income withholding, which is then paid to the Alabama Child Support Center.  I highly recommend the parent who is paying child support to use the payment center. The Center disburses child support payments on the same day they are received; you may choose to have child support sent to you through check, direct deposit or a debit card.  Too many times a parent has a difficult time providing actual proof the he or she made the child support payments.  By making payment to the child support center, it’s very easy to get a print out of all payments made.

 

 

 

 

 

 

  POTENTIAL CHILD SUPPORT      REDUCTION

 

Many people have been paying a much larger monthly child support payments than are now necessary.  Many times a divorced parents is paying for child daycare. When your child support was originally calculated, that daycare payment was added to the total child support obligation.  If your child is now no longer needing daycare or is now enrolled in school, you can ask the court to recalculate your child support to a lower amount. 

TODAY JUDGES ARE REQUIRED TO FIRST ASSUME THAT IT IS BEST FOR BOTH PARENTS TO HAVE JOINT CUSTODY.

 CONTESTED OR UNCONTESTED

 

      Contested:  With a contested divorce, you definitely need an attorney with experience. This type of divorce is emotionally and mentally draining and more often than not very time consuming.  You need professional guidance.

 

     Uncontested:  The first decision you need to make when thinking about a divorce is whether you will be filing a contested or uncontested divorce.  With an uncontested divorce, you and your spouse will have to agree on everything.  If you have children, you will have to agree on custody, visitation and child support.  You will have to agree on exactly how your property will be divided and who will pay any debt.  There are many things to consider when reaching this agreement.  My office will draft all the documents and make sure that from a “legal” standpoint, the agreement will bind both parties and make each spouse responsible for the agreed terms.  There are many pitfalls when drafting and filing an uncontested divorce.  Experience drafting the document contents is very important.

 

 

    EQUITY COURTS

EQUITY COURT- Divorces are filed in the Domestic Relations or DR Courts in Alabama.  DR courts are called "courts of equity".  Equity means that if you cannot reach an agreement between yourselves, the judge will hear the evidence and will make his or her decision based upon the equity of the evidence at trial.

 

This means that the division of property, debts and custody between the divorcing parties should be fair and equitable, but not necessarily equal.  There is no fixed standard. 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.

RETIREMENT PLANS

The court in a divorce may include in the estate of either spouse the present value of any future or current retirement benefits, subject to several limitations:

The spouse owning the benefits must have a vested interest in them or be receiving them on the date the divorce action is filed.The parties must have been married for 10 years, during which the retirement benefit was being accumulated.Any retirement benefits accumulated before the marriage, including any earnings produced by such benefits, must be excluded.The total benefit extended to the non-covered spouse may not exceed half the benefit to be considered. The payout to the non-covered spouse may not begin until the covered spouse begins receiving benefits or reaches age 65, whichever occurs first.

CHILD VISITATION

As a non-custodial parent, you have a legal right to spend time with your children. Child support and child visitation are not connected to each other. So, even if a non-custodial parent is not paying child support, he or she is still entitled to see their child. Likewise, if a custodial parent is not allowing the non-custodial parent to see his or her child, the non-custodial parent is still legally obligated to pay child support.

DIVORCE QUESTIONNAIRE

If you would like a consultation or need to get started with the divorce or modification, please download this form, answer all questions and either email to my office or return the form at your appointment.

Please use the email form above to submit information describing your legal issue. Include all necessary contact information and someone from my office will contact you as soon as possible. All communication is strictly confidential.

What happens to our pets if we divorce?

 

Plainly stated, the dog is part of the marital property and has to be equitably divided according to its value, if value can be assigned. In some rare cases, tests have been administered based on the “best interest” theory for custody, which measures the degree of attachment between pet and human.

 

 

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