Alabama Divorce Procedures

Alabama Divorce Procedures

Complete overview of Alabama divorce laws for people considering an Alabama divorce or filing an Alabama divorce with issues to be resolved about child custody, child support, visitation and alimony.

Alabama Divorce Residency Requirements

In order to file your Complaint for Divorce in Alabama, you must make sure the Circuit Court has jurisdiction over your case. The most common way spouses are eligible to use a specific court system is by meeting the residency requirements. Meeting the Alabama residency requirements is typically only a concern for a spouse who has recently moved or is planning to move in the near future. The filing requirements are as follows:

When the defendant is a nonresident, the other party to the marriage must have been a resident of this state of Alabama for six months before the filing of the complaint for divorce.

Complaints for divorce may be filed 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.

The divorce is typically filed with in county in which the filing spouse lives.

(Code of Alabama – Title 30 – Chapters: 2-4 and 2-5)

Since divorce is governed by state law, it is required that you meet specific residency requirements in order to file for a divorce in the state of Alabama. It is most common that people file for a divorce in the county in which they live.

If you are unsure of whether or not you meet the Alabama residency requirements you can try contacting the Clerk’s office of the domestic relations or family law division of your county courthouse.

Alabama Grounds for Divorce

The Complaint for Divorce is the initial document filed with the Alabama court. It is in this document that the filing spouse will request the court to terminate the marriage under certain specified grounds.

The circuit court has power to divorce persons from the bonds of matrimony, for the causes following:

No-Fault Based Grounds:
a) Incompatibility.
b) Irretrievable breakdown of the marriage.
c) voluntary abandonment from bed and board for one year.

Fault Based Grounds:
a) Incapacitated from entering into the marriage state;
b) adultery;
c) Imprisonment;
d) habitual drunkenness or drug use;
e) Insanity for five successive years;
f) In favor of the husband, when the wife was pregnant at the time of marriage, without his knowledge or agency;
g) Domestic Abuse.

(Code of Alabama – Title 30 – Chapters: 2-1 and 2-2)

Every divorce case that is filed in the state of Alabama must declare the grounds in which the divorce is to be granted. The grounds for divorce must be substantiated with evidence or testimony otherwise the court may dismiss the case. When you are petitioning the court for a divorce, or agreeing to a divorce, make sure that you completely understand the grounds and any potential legal repercussions.

Alabama Uncontested Divorce

This information is an overview of the uncontested Alabama divorce filing process and a summary of the divorce papers that are typically filed with the family law or domestic relations clerk. This overview is not intended to be an exact step-by-step guide for those “do it yourself divorce” filers, due to the fact that many cases are unique and the overview presented here is often not the only method of obtaining an uncontested divorce in Alabama.

When one of the spouses is not a resident of Alabama, the filing spouse must be a resident of the state for at least six months before initiating the action. The action may be filed 1) in the county where the Defendant resides, 2) in the county where the spouses resided at the time they separated or 3) in the county where the Plaintiff resides if the Defendant is a nonresident of Alabama.

Grounds for divorce are No-Fault, which is:

a) an irretrievable breakdown of the marriage;
b) complete incompatibility of temperament such that the spouses can no longer live together, and
c) voluntary separation for more than a year.

General grounds are:

a) adultery; b) living separate and apart without cohabitation for more than two years without the husband supporting the wife; c) imprisonment for more than two years when the sentence is more than seven years; d) unnatural sexual behavior before or after marriage; e) alcoholism; f) drug abuse; g) confinement for incurable insanity for over five years; h) wife pregnant by another man at the time of marriage without the husband’s knowledge; i) abuse or reasonable fear of physical abuse; j) lack of ability to consummate marriage.

Actions are filed in the Circuit Court of the county.

The filing spouse is called the Plaintiff; the responding spouse is called the Defendant.

Alabama does not have a summary divorce. It requires specific evidence to support a default judgment, but Acceptance and Waiver of Service is permitted if the form is signed by the Defendant and a credible witness. After filing the Complaint and Summons, a 30-day period must transpire before a judge may issue a final judgment of divorce. In uncontested actions, testimony may be taken by a court clerk, by sworn statements, or in transcripts of oral depositions. In every case in which child support is requested, a standardized Child Support Guidelines form and Child Support Income Statement/Affidavit must be filed.

Depending on the county, there may be some variations in the forms filed for a divorce, but the general procedures are as follows:

To file for an uncontested divorce without children, the Plaintiff must file the following forms:

a) A Complaint, which is normally filed concurrently with the Marital Settlement Agreement, and asks the court to end the marriage;

b) An Answer, Waiver and Agreement for Taking Testimony, by which the Defendant waives the right of service of process, but demands “strict proof” of every allegation;

c) Testimony of Plaintiff, a notarized affidavit by which the Plaintiff certifies grounds for the divorce; that the Defendant is not in the military; and that the marriage has broken down hopelessly;

d) Affidavit of Residency, a notarized statement by a third-party attesting that the Plaintiff meets the residency requirements of Alabama;

e) Vital Statistics Form, which is a Certificate of Divorce used for keeping state records.

To file for an uncontested divorce with children, the Plaintiff must file the above forms plus these forms:

a) Child Support Information Sheet, CS-47, which provides information about child support;

b) Child Support Obligation Income Statement/Affidavit, CS-41, an affidavit of income, which must be completed by both spouses;

c) Child Support Guideline Form, CS-42, which documents the calculation of child support and by which child support is calculated;

d) Child Support Guideline Notice of Compliance, Form CS-43, which documents that the Alabama rules of judicial administration for child support have been met;

e) Standing Pre-Trial Order, which prohibits the spouses from harassing one another and removing children from the state and which may mandate the “Transition in Parenting” Class, which must be attended by both spouses;

f) Certificates of Attendance of the Children Cope with Divorce Seminar, which is required of both parents.

Generally, when the court issues an Order of Child Support in any action, a Withholding Order Payment of Child Support is immediately served also. The following forms must be completed and filed when the Withholding Order Payment of Child Support is served:

a) Notice to Defendant, which puts him or her on notice of the action;

b) Instructions for Employer, which informs the employer of the spouse paying support of the action;

c) Answer to Order of Withholding, which sets the action in motion;

d) An Order of Service and Return.

When a spouse cannot be located, the Plaintiff must publish a notice of the divorce in a local newspaper for four consecutive weeks, after which the Defendant is considered to be served.

Alabama Simplified Divorce Procedures

There is no legal provision in Alabama for summary divorce. In addition, specific evidence must be presented at a court hearing to support a default judgment in a divorce case. However, acceptance and waiver of service is allowed if signed by the defendant and a credible witness. There is a 30-day waiting period after the filing of the summons and complaint before a judge may issue a final judgment of divorce. Testimony in uncontested divorces may be taken before a court clerk, by sworn statements, or by transcripts of oral depositions. A standardized Child Support Guidelines form and Child Support Income Statement/Affidavit must be filed in every case in which child support is requested.

[Code of Alabama: Title 30, Chapter 2-8.1; Alabama Rules of Civil Procedure; Rules 4, 43(a), 53, and 55 and Alabama Rules of Judicial Administration: Rule 32].

Each state has its own unique filing procedure. When filing for divorce in Alabama, you must adhere to the strict filing guidelines and prepare and submit the appropriate mandatory divorce documents to the county court. You will discover that some documents may be provided by the Alabama Legal System and others must be constructed on a case-by-case basis containing certain information and criteria to adhere to the Alabama Laws and the filing requirements.

Alabama Property Division Factors

In Alabama, the property and debt issues are typically settled between the parties by a signed Marital Settlement Agreement or the property award is actually order and decreed by the Circuit Court within the Judgment of Divorce.

Alabama is referred to as an “equitable distribution” state. When the parties are unable to reach a settlement, the Circuit Court will take the following approach to dividing the assets; First, it will go through a discovery process to classify which property and debt is to be considered marital. Next, it will assign a monetary value on the marital property and debt. Last, it will distribute the marital assets between the two parties in an equitable fashion. Equitable does not mean equal, but rather what is deemed by the Circuit Court to be fair.

If the parties do not agree to how their property is to be distributed, the court will do so in an equitable fashion. The court will determine what property is marital and after putting a value on this property, it will distribute a portion to each spouse. The court does not have the right to distribute any separate property that was obtained before or during the marriage. The separate property is, but not limited to gifts and inheritances, unless these gifts and inheritances have been used to benefit both spouses as a married couple. Marital misconduct may be a consideration by the court when distributing the property.

(Code of Alabama – Title 30)

Since Alabama is an “Equitable Distribution” state, all marital property will be divided in an equitable fashion according to the court unless agreed to otherwise by the divorcing spouses. What does “equitable” mean? Equitable can be defined as “what is fair, not necessarily equal.” To automatically believe the marital property would be divided 50-50 would be a wrong assumption in any equitable distribution state.

Alabama Spousal Support/Maintenance/Alimony Factors

In Alabama the support payments (if any) can certainly influence how the marital property distribution is awarded, which is why it can become a very intricate part of the final outcome of any divorce. Keeping this in mind, if you and your spouse are unable to reach and agreement on this issue, the Circuit Court will order support from one spouse to the other on a case-by-case basis as follows:

The judge, at his or her discretion will consider; the value of each spouse’s assets as well as their families and up to one half of any pension, 401k or retirement benefits as long as the length of the marriage was 10 years or more. Any marital misconduct by either spouse may be considered in determining the appropriate support amount. Any property acquired prior to the marriage or by inheritance or gift may not be considered in determining the support amount.

(Code of Alabama – Title 30 – Chapters: 2-51, 2-52, and 2-55)

Alabama Child Custody Factors

In Alabama, the court may grant the custody and education of the children of the marriage to either parent, as may seem right and proper, having regard to the moral character and prudence of the parents and the age and sex of the children; and pending the action, may make such orders in 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.

The circuit court has power, on the motion of either party, 20 days’ notice thereof being given to the other, to permit either parent to have the custody and control of the children and to superintend and direct their education, having regard to the prudence, ability and fitness of the parents, and the age and sex of the children.

(Code of Alabama – Title 30 – Chapters: 3-1)

In Alabama, as with all other states, the court will always be looking out for the best interests of the children. What you want or your spouse wants is not really relevant until the court says it is. Many parents go to custody hearings not realizing that they must portray themselves as the best custodial parent rather pleading to the court that they simply deserve the children. The court would much prefer the parents to decide who should have custody, but if they can’t, the court will do it for them.

Alabama Child Support Factors

The court may order either parent to provide child support. There are official Child Support Guidelines contained in the Alabama Rules of Judicial Administration: Rule 32. These guidelines are presumed to be correct unless there is a showing that the amount would be unjust or inappropriate under the particular circumstances of a case. A written agreement between the parents for a different amount with a reasonable explanation for the deviation from the guidelines will also be allowed. A standardized Child Support Guidelines form and Child Support Income Statement/Affidavit must be filed in every case in which child support is requested. There is also a procedure for expedited processing in child support cases. Alabama driver’s licenses may be suspended for failure to pay child support.

[Code of Alabama: Title 30, Chapters 3-1 and 3-200 and Alabama Rules of Judicial Administration: Rules 32 and 35].

Alabama child support is typically calculated by using a Child Support Worksheet. The worksheet will generate an appropriate Alabama child support obligation according to each spouse’s income and other relative numeric factors such as taxes paid and retirement contributions, etc.. Once this amount is determined it is essential to take a look at any appropriate Alabama child support deviation factors that may be applicable to the situation.

Alabama Grandparent’s Rights

Grandparent Rights to Visitation: Divorce pending, one parent is deceased and surviving parent denies reasonable visitation, or grandparent unreasonably denied visitation for period exceeding 90 days. Title 30, Chapter 3 (C.A. §30-3-4 et seq.)

When Adoption Occurs: Natural grandparents may have post-adoption visitation when the child is adopted by a stepparent, another grandparent, brother, sister, half-brother or sister, an aunt or uncle and their respective spouses.

Child Custody Statutes: Factors: a) moral character of parents; and b) age and sex of child. C.A., §30-3.

Parents May Choose: Yes

Alabama Military Divorce Laws

An Alabama military divorce creates several unique issues as compared to a typical civilian divorce, which is why specific state and federal laws and rules will apply.

Military Protection From Alabama Divorce Proceedings

There are laws set up to protect active duty military members against being held in “default” from failing to respond to a divorce action. These laws were enacted to protect active military from being divorced without knowing it.

Under the Soldiers and Sailors Civil Relief Act, 50 UCS section 521 and in the discretion of the local Alabama court, the divorce proceeding may be postponed for the entire time the active service member is on duty and for up to 60 days thereafter (This is typically the case when the active member is serving in a war). Also, this right to have the divorce proceedings postponed can be waived by any active duty member should he or she wish to get the divorce.

Serving an Active Military Spouse

The active duty spouse must be personally served with a summons and a copy of the divorce action in order for an Alabama court to have jurisdiction over the active military member. In an uncontested case, the active duty spouse may not have to be served as long as he or she signs and files a waiver affidavit acknowledging the divorce action.

Residency and Filing Requirements

The typical military divorce filing requirements are as follows:

a) You or your spouse must reside in Alabama
b) You or your spouse must be stationed in Alabama

Grounds for Alabama Military Divorce

The grounds for a military divorce in Alabama are the same as a civilian divorce.

Dividing the Property

Along with the normal Alabama property division laws, the federal government has enacted the Uniformed Services Former Spouses’ Protection Act (USFSPA) that governs how military retirement benefits are calculated and divided upon divorce. The USFSPA is the governing body that authorizes a direct payment of a portion of a military retirees pay to the former spouse.

The federal laws will not divide and distribute any of the military members retirement to the spouse unless they have been married 10 years or longer while the member has been active duty military.

Child Support and Spousal Support

In Alabama, both child support and spousal support/alimony awards may not exceed 60% of a military member’s pay and allowances. The normal Alabama child support guidelines, worksheets and schedules are used to determine the proper amount of child support to be paid.

Alabama Child Support Guidelines

The Alabama child support guidelines “at a glance” provides a quick reference to what applicable child support laws are considered and/or not considered when determining the appropriate Alabama child support order.

Alabama Child Support Guidelines

> Income Share Model *: YES
> Percent of Income Model *: NO
> Worksheets Available: YES
> Extraordinary Medical Expenses Add on: YES
> Childcare Add on: YES
> Secondary Education Support: YES
> UIFSA: NO

* The Income Shares Model: Alabama child support is calculated by estimating the amount of support that would have been available to the child(ren) if the family had remained intact. This estimated amount is then divided proportionally to the parents according to each parent’s income. This is easily done by using the Alabama child support worksheet and the estimated incomes are typically substantiated by past pay stubs or w-2s.

For example: If the father has a higher income than the mother, he would then be responsible for the greater portion of the child support obligation. Conversely, if the father has a lower income than the mother, he would then be responsible for the smaller portion of the child support obligation.

As a reminder, the child support obligation can manifest itself differently between a custodial and a noncustodial parent.

For example: It is not common for a custodial parent to be paying support to a non-custodial parent.

Alabama Child Support Definitions

1) Child support guidelines established.
Guidelines for child support are hereby established for use in any action to establish or modify child support, whether temporary or permanent. There shall be a rebuttable presumption, in any judicial or administrative proceeding for the establishment or modification of child support, that the amount of the award which would result from the application of these guidelines is the correct amount of child support to be awarded. A written finding on the record indicating that the application of the guidelines would be unjust or inappropriate shall be sufficient to rebut the presumption if the finding is based upon:

i) A fair, written agreement between the parties establishing a different amount and stating the reasons therefor; or.

ii) A determination by the court, based upon evidence presented in court and stating the reasons therefor, that application of the guidelines would be manifestly unjust or inequitable.

A) Reasons for deviating from the guidelines. Reasons for deviating from the guidelines may include, but are not limited to, the following:.

a) Shared physical custody or visitation rights providing for periods of physical custody or care of children by the obligor parent substantially in excess of those customarily approved or ordered by the court;

b) Extraordinary costs of transportation for purposes of visitation borne substantially by one parent;

c) Expenses of college education incurred prior to a child’s reaching the age of majority;

d) Assets of, or unearned income received by or on behalf of, a child or children; and.

e) Such other facts or circumstances that the court finds contribute to the best interest of the child or children for whom support is being determined.

The existence of one or more of the reasons enumerated in this section does not require the court to deviate from the guidelines, but such reason or reasons may be considered in deciding whether to deviate from the guidelines. The court may deviate from the guidelines even if no reason enumerated in this section exists, if evidence of other reasons justifying deviation is presented.

B) Stipulations. Stipulations presented to the court shall be reviewed by the court before approval. No hearing shall be required; however, the court shall use the guidelines in reviewing the adequacy of child support orders negotiated by the parties and shall review income statements that fully disclose the financial status of the parties. The court, however, may accept from the parties and/or their attorneys of record a Child Support Guidelines Notice of Compliance that indicates compliance with this rule or, in the event the child support guidelines have not been met, the reason for the deviation there from. The form, content, and numbering scheme of the Child Support Guidelines Notice of Compliance shall be prescribed by the administrative director of courts (ADC).

C) Modifications. The child support guidelines shall be used by the parties as the basis for periodic updates of child support obligations.

a) The provisions of any judgment respecting child support shall be modified only as to installments accruing after the filing of the petition for modification.

b) There shall be a rebuttable presumption that child support should be modified when the difference between the existing child support award and the amount determined by application of these guidelines varies more than ten percent (10%), unless the variation is due to the fact that the existing child support award resulted from a rebuttal of the guidelines and there has been no change in the circumstances that resulted in the rebuttal of the guidelines.

D) Health care needs. All orders establishing or modifying child support shall, at a minimum, provide for the children’s health care needs through health insurance coverage or other means. Normally, health insurance covering the children should be required if it is available to either parent through his or her employment or pursuant to any other group plan at a reasonable cost.

2) Definitions.

Income – For purposes of the guidelines established by this rule, “income” means actual gross income of a parent, if the parent is employed to full capacity, or the actual gross income the parent has the ability to earn if the parent is unemployed or underemployed.

Gross income – “Gross income” includes income from any source, and includes, but is not limited to, salaries, wages, commissions, bonuses, dividends, severance pay, pensions, interest, trusts, annuities, capital gains, Social Security benefits, workers’ compensation benefits, unemployment insurance benefits, disability insurance benefits, gifts, prizes, and preexisting periodic alimony.

“Gross income” does not include child support received for other children or benefits received from means-tested public assistance programs, including, but not limited to, Aid to Families with Dependent Children, Supplemental Security Income, food stamps, and general assistance.

Self-employment income – For income from self-employment, rent, royalties, proprietorship of business, or joint ownership of a partnership or closely held corporation, “gross income” means gross receipts minus ordinary and necessary expenses required to produce such income, as allowed by the Internal Revenue Service.

Ordinary and necessary expenses – “Ordinary and necessary expenses” does not include amounts allowable by the Internal Revenue Service for the accelerated component of depreciation expenses, investment tax credits, or any other business expenses determined by the court to be inappropriate for determining gross income for purposes of calculating child support.

Other income – Expense reimbursements or in-kind payments received by a parent in the course of employment, self-employment, or operation of a business shall be counted as income if they are significant and reduce personal living expenses.

E) Unemployment; underemployment – If the court finds that either parent is voluntarily unemployed or underemployed, it shall estimate the income that parent would otherwise have and shall impute to that parent that income; the court shall calculate child support based on that parent’s imputed income. In determining the amount of income to be imputed to a parent who is unemployed or underemployed, the court should determine the employment potential and probable earning level of that parent, based on that parent’s recent work history, education, and occupational qualifications, and on the prevailing job opportunities and earning levels in the community. The court may, in its discretion, take into account the presence of a young or physically or mentally disabled child necessitating the parent’s need to stay in the home and therefore the inability to work.

F) Preexisting child support obligation. The amount of child support actually being paid by a parent pursuant to an order for support of other children shall be deducted from that parent’s “gross income.” If a parent is legally responsible for and is actually providing support for other children, but not pursuant to an order of support, a deduction for an “imputed preexisting child support obligation” may be made from that parent’s gross income. The imputed preexisting child support obligation shall be that amount specified in the schedule of basic child support obligations based on that parent’s unadjusted gross income and the number of other children for whom that parent is legally responsible. “Other children” means children who are not the subject of the particular child support determination being made. If the proceeding is one to modify an existing award of support, no deduction should be made for other children born or adopted after the initial award of support was entered, except for support paid pursuant to another order of support.

G) Health insurance premiums:

a) The actual cost of a premium to provide health insurance benefits for the children shall be added to the “basic child support obligation” and shall be divided between the parents in proportion to their adjusted gross income in the percentages indicated on the Child Support Guidelines.

b) The amount to be added to the “basic child support obligation” shall be the actual amount of the total insurance premium for family/dependent coverage, regardless of whether all children covered are in the same family.

c) After the “total child support obligation” is calculated and divided between the parents in proportion to their “monthly adjusted gross income,” the amount added pursuant to subsection (b) shall be deducted from the obligor’s share of the total child support obligation, provided the obligor actually pays said premium. If the obligee is actually paying the premium, no further adjustment is necessary.

d) If, at any time while a child support order providing for an insurance adjustment is in effect, such insurance coverage is allowed to lapse, is terminated, or otherwise no longer covers the children for whose benefit the order was issued, the court

1) may find the amount deducted from the obligor’s child support obligation therefor to be an arrearage in the obligor’s total child
support obligation;
2) may find the obligor liable for medical expenses that would otherwise have been covered under the insurance; and/or
3) enter such other order as it shall deem appropriate.

H) Child care costs. Child care costs, incurred on behalf of the children because of employment or job search of either parent, shall be added to the “basic child support obligation.” Child care costs shall not exceed the amount required to provide care from a licensed source for the children, based on a schedule of guidelines developed by the Department of Human Resources. Before the Department of Human Resources implements any revision to the schedule of child care cost guidelines, it shall provide the ADC a copy of the revised schedule. The ADC shall, as soon as reasonably practicable thereafter, disseminate the revised schedule to all judges, all circuit, district, and juvenile court clerks and registers, and the Family Law Section of the Alabama State Bar. The clerk or register shall maintain the current schedule in his/her office, shall make it available for review, and shall provide copies of it on request, at the customary cost for copies of documents.

Alabama Divorce Definitions

This collection of definitions will help clarify some unique characteristics to the Alabama Divorce laws, process and paperwork which is filed with the court.

Filing Party Title:
Plaintiff

The spouse who will initiate the Divorce by filing the required paperwork with the court.

Non-Filing Party Title:
Defendant

The spouse who does not initiate the Divorce with the court.

Court Name:
In the Circuit Court for __________ County, Alabama.

The proper name of the court in which a Divorce is filed in the state of Alabama. Each jurisdictional court typically has a domestic relations or a family law department or division.

The state run office devoted to enforcing existing child support orders and collecting any past due child support.

Document Introduction:
In Re the Marriage of:

The lead-in verbiage used in the legal caption or header of the documents filed with the court. The introduction typically prefaces both spouse’s names.

Initial Divorce Document:
Complaint for Divorce

The title and name of the legal document that will initiate the Alabama Divorce process. The filing spouse is also required to provide the non-filing spouse a copy of this document.

Final Divorce Document:
Judgment of Divorce

The title and name of the legal document that will finalize the Alabama Divorce process. This document will be signed by the judge, master, or referee of the court to declare your marriage officially terminated.

Clerk’s Office Name:
County Clerk’s Office of the Circuit Court

The office of the clerk that will facilitate the Divorce process. This is the title you would address letters to or ask for when contacting the courthouse.

Legal Separation:

A divorce “from bed and board” may be granted for cruelty or for any of the same causes for which a standard divorce may be granted if the spouse filing desires that the divorce be limited to a divorce “from bed and board.” [Code of Alabama: Title 30, Chapter 2-30].

Property Distribution:
Equitable Distribution (dictated by case law)

The applicable Alabama law that will dictate how property and debt is to be divided upon Divorce.

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