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Divorce in Alabama
The Legal Process, Your Rights, and What to Expect
By Jessica Kirk Drennan
Addicus Books, Inc.Copyright © 2013 Jessica Kirk Drennan, Esq.
All rights reserved.
Understanding the Divorce Process
At a time when your life can feel like it's in utter chaos, sometimes the smallest bit of predictability can bring a sense of comfort. The outcome of many aspects of your divorce may be unknown, increasing your fear and anxiety. But there is one part of your divorce that does have some measure of predictability, and that is the divorce process itself.
Most divorces proceed in a step-by-step manner. Despite the uniqueness of your divorce, you can generally count on one phase of your divorce following the next. Sometimes just realizing you are completing stages and moving forward with your divorce can reassure you that it will not go on forever.
Develop a basic understanding of the divorce process. This will lower your anxiety when your attorney starts talking about "depositions" or "going to trial," and will prevent your heart from pounding in fear. It can reduce your frustration with the legal process because as your divorce progresses you understand each step and why it is needed. It will also help you prepare for each step in advance, which keeps your divorce moving toward final resolution in an efficient manner. Most importantly, understanding the divorce process will make your experience of the entire divorce easier. Who wouldn't prefer that?
1.1 What steps are taken during the divorce process?
The divorce process in Alabama typically involves the steps listed in the chart that follows.
The Divorce Process
Obtain a referral for a lawyer.
Schedule an appointment with an attorney.
Prepare questions and gather needed documents for initial consultation.
Meet for initial consultation with attorney.
Pay retainer to attorney and sign retainer agreement.
Provide requested information and documents to your attorney.
Take other actions as advised by attorney, such as opening or closing financial accounts.
Attorney prepares complaint for divorce and affidavits for temporary matters for your review and signature.
Attorney files complaint with clerk of the court. Attorney obtains ex parte restraining orders if appropriate. Attorney obtains hearing date for temporary matters.
Spouse is served papers by sheriff or special process server.
Spouse has thirty days to file an appearance and/or answer with the court. If spouse fails to do so, attorney files an application for default judgment which is entered by the clerk of the court. Attorney obtains a hearing date for default judgment. Client and attorney appear in court to give testimony in support of default judgment. Court enters default judgment.
Spouse files an appearance and/or answer with the court within thirty days of being served.
Negotiations begin regarding terms of temporary order on matters such as custody, spousal support, and temporary possession of the family home. Attorneys prepare financial affidavits, budgets, and Child Support Guidelines for temporary hearing.
Temporary hearing held. Judge makes decision.
Parties reach agreement on temporary order.
Temporary order is prepared by one attorney, approved as to form by other attorney, and submitted to the judge for signature.
If there are minor children, parties comply with any local rules or court orders to attend parent education class, develop a parenting plan, pay household bills, or pay child support.
Both sides conduct discovery, which includes interrogatories, request for admissions, request for production, depositions, and subpoenas to obtain information regarding all relevant facts. Obtain valuations of all assets, including expert opinions if needed.
Confer with attorney to review facts, identify issues, assess strengths and weaknesses of case, review strategy, and develop proposal for settlement.
Spouses, with support of attorneys, attempt to reach agreement through written proposals, mediation, settlement conferences, or other negotiation.
Parties reach agreement on all issues.
Attorney prepares final judgment of divorce incorporating the parties' agreement, and attorney prepares separate court orders for the division of retirement plans and submits to opposing counsel and spouse for approval.
If the court has not previously entered a scheduling order, the attorney prepares a motion to be filed with court asking that a trial date be set.
Parties prepare for trial on unresolved issues.
A brief final hearing is held.
Trial preparations proceed including preparation of witnesses, trial exhibits, child support forms, required forms by local rule, legal research on contested issues, pretrial motions, trial brief, preparation of direct and cross-examination of witnesses, preparation of opening statement, subpoena of witnesses, closing argument, and suggestions to the court.
Meet with attorney for final trial preparation.
Trial is held.
Judge makes a decision.
Judge's office prepares final judgment of divorce or requests that attorney prepare final judgment of divorce and submit to other attorney to approve as to form.
Decree submitted to judge for signature.
Judge signs final judgment of divorce.
Make payments, divide property, and sign documents (deeds or titles) pursuant to final judgment of divorce.
1.2 Must I have an attorney to get a divorce in Alabama?
You are not required to have an attorney to obtain a divorce in Alabama. However, if your case involves children, alimony, significant property, retirement, or debts, you should avoid proceeding on your own.
If your divorce does not involve any of these issues, contact your local/state volunteer lawyer program, Legal Clinic at University of Alabama School of Law, Cumberland School of Law, or Faulkner University Jones School of Law, to request documents and instructions that are helpful in the simplest of cases. A person who proceeds in a legal matter without a lawyer is referred to as being pro se (pronounced pro-say), meaning on one's own.
If you are considering proceeding without an attorney, at a minimum have an initial consultation with an attorney to discuss your rights and duties under the law. You may have certain rights or obligations you are unaware of. Meeting with a lawyer can help you decide whether to proceed on your own.
1.3 What is my first step?
Find a law firm that handles divorces as a regular part of its law practice. The best recommendations come from people who have knowledge of a lawyer's experience and reputation.
Even if you are not ready to file for divorce, call to schedule an appointment right away to obtain information about protecting yourself, your property, and your children. Even if you are not planning to file for divorce, your spouse might be.
Ask what documents you should bring to your initial consultation. Make a list of your questions to bring to your first meeting. Start making plans for how you will pay your attorney to begin work on your case.
1.4 Is Alabama a no-fault state or do I need grounds for a divorce?
Alabama, like most states, has no-fault grounds. But Alabama also has fault grounds. The no-fault grounds make it possible to be granted a divorce by simply proving that you have an "incompatibility of temperament" with your spouse or that there has been an "irretrievable breakdown" of your marriage. The attorney will usually include both no-fault grounds in the complaint for divorce that is filed with the court.
The testimony of either you or your spouse is likely to be sufficient evidence for the court to rule that the marriage should be dissolved on a no-fault ground. This testimony, usually given by the spouse who filed for the divorce, will state that efforts at reconciliation were made, that those efforts were not successful, that further attempts would not be beneficial, that the marriage is irretrievably broken, or that there is such disagreement between you and your spouse and so many differences of interests that you can no longer live together as husband and wife.
The judge may ask for information regarding the nature of the problems that led to the divorce or the type of reconciliation efforts made, such as counseling with a therapist or clergy member. Some specificity is required in Alabama. A mere statement that you are "incompatible with your spouse" or that your marriage is "irretrievably broken" is insufficient.
There are ten fault grounds in Alabama:
Incapacity to enter marriage — due to age, mental capacity, previous undissolved marriage, or other legal impediment
Voluntary abandonment for one year without spouse's consent
Imprisonment for two years, with sentence for seven or more years
Crime against nature, which is a sexual act, such as sodomy, bestiality, and necrophilia
Habitual drunkenness or drug addiction
Incurable insanity after confinement for five years
Pregnancy at time of marriage, without knowledge or agency of husband, which means the husband did not cause the pregnancy nor did he know about the pregnancy at the time of marriage
Violence or reasonable fear of violence
Living separate and apart without support for two years
It can be difficult to present enough evidence to legally prove a fault ground; therefore, the courts usually grant divorces on no-fault grounds. Even on those occasions when a divorce is granted on a fault ground, the court will also, in most circumstances, grant it on a no-fault ground. When the court grants your divorce on more than one ground, all grounds will be stated in your final judgment of divorce.
1.5 Do I have to get divorced in the same state I married in?
No. Regardless of where you were married, you may seek a divorce in Alabama if the jurisdictional requirements of residency are met.
1.6 How long do I have to live in Alabama to get a divorce in the state?
Either you or your spouse must be a resident of Alabama to be granted a divorce in Alabama. If one spouse does not reside in Alabama, then the other spouse is required to reside in Alabama for at least six months immediately before filing for divorce in Alabama.
If neither party meets the residency requirement, other legal options are available for your protection. Talk to your attorney about options such as a petition for a custody and support order, or a protection from abuse order.
1.7 My spouse has told me she will never give me a divorce. Can I get one in Alabama anyway?
Yes. Alabama does not require that your spouse agree to a divorce. If your spouse threatens to not "give" you a divorce, know that in Alabama this is likely to be an idle threat without any basis in the law.
Under Alabama law, to obtain a divorce you must be able to prove that your marriage is "irretrievably broken," or that you and your spouse or so "incompatible" that you can no longer live together as husband and wife. The only evidence required to prove this is your testimony given under oath to the court. In short, it is not necessary to have your spouse agree to the divorce, nor is it necessary for your spouse to agree to the specific difficulties that arose during the marriage contained in your testimony to obtain a divorce in Alabama.
1.8 Can I divorce my spouse in Alabama if he or she lives in another state?
Provided that you have met the residency requirements for Alabama by residing in Alabama for at least six months, you can file for divorce here even if your spouse lives in another state.
Discuss with your attorney the facts that will need to be proven and the steps necessary to give your spouse proper notice to ensure that the court will have jurisdiction over your spouse. Your attorney can advise you on whether it is possible to proceed with the divorce.
1.9 How can I divorce my spouse when I don't know where this person lives now?
Alabama law allows you to proceed with a divorce even if you do not know the current address of your spouse.
First, take action to attempt to locate your spouse. Contact family members, friends, former coworkers, or anyone else who might know your spouse's whereabouts. Attempt to use your spouse's last known residential addresses, telephone numbers, and email addresses. Utilize resources on the Internet that are designed to help locate people.
Let your attorney know of the efforts you have made to attempt to find your spouse. Inform your lawyer of your spouse's last known address, as well as any work address or other address where this person may be found. Your attorney then will prepare a statement under oath, called an affidavit, setting forth that your spouse cannot be found despite your best efforts to do so and requesting that your spouse be given notice through publication in the newspaper. The clerk of the court will then direct that notice of the divorce be published in the newspaper once per week for four consecutive weeks. Your spouse will have thirty days from the last newspaper publication to file an answer with the clerk.
When your spouse receives notice by publication in a newspaper but does not file an answer with the court, you may receive a divorce by default. In a default divorce, the court may enter an order granting your divorce and dividing marital property located within the State of Alabama. However, you may not be able to get other court orders such as those for child custody, child support, alimony, or division of property located outside the State of Alabama. These types of court orders require personal notice to your spouse. Personal notice is when you give notice of the divorce to your spouse by sheriff, special process server, or certified mail, return receipt requested. Talk to your attorney about your options and rights if you don't know where your spouse is living.
1.10 I just moved to a different county. Do I have to file in the county where my spouse lives?
You may file your divorce complaint either in the county where you and your spouse separated as husband and wife or in the county where your spouse resides.
1.11 I immigrated to Alabama. Will my immigration status stop me from getting a divorce?
If you meet the residency requirements for divorce in Alabama, you can get a divorce here notwithstanding your immigration status. Talk to your immigration lawyer about the likelihood of a divorce leading to immigration challenges.
If you are a victim of domestic violence or if your spouse often threatens to call immigration to report your status, tell your lawyer. You may be eligible for a change in your immigration status under the federal Violence Against Women Act. This act applies to male and female immigrants.
1.12 I want to get divorced in my Indian tribal court. What do I need to know?
Each tribal court has its own laws governing divorce. Requirements for residency, grounds for divorce, and the laws regarding property, alimony, and children can vary substantially from state law. Some tribes have very different laws governing the grounds for your divorce, removal of children from the home, and cohabitation.
If you and your spouse reside on an Indian reservation, the State of Alabama can only assume jurisdiction over your divorce if your Indian tribe does not provide for divorce in its tribal court, or, if the tribe does provide for divorce, when the tribal court agrees to relinquish its jurisdiction to the State of Alabama.
If you and your spouse do not live on an Indian reservation, then the State of Alabama may take jurisdiction over your divorce proceeding. However, the court may not be able to address child custody issues as the federal Indian Child Welfare Act of 1978 gives tribal courts exclusive jurisdiction over child custody of an Indian child who lives on a reservation and arguably of an Indian child who does not. Federal law also prohibits a non-Indian man who marries an Indian woman from acquiring any rights to tribal property; therefore, the Alabama court's power to divide marital property may be affected.
Due to the complexity of the legal issues concerning jurisdiction, child custody, property division, and other issues caused by the interaction of state, federal, and tribal laws, it is of the utmost importance to contact an attorney who is knowledgeable about the law in your tribal court for legal advice on pursuing a divorce in your tribal court or on the requirements for recording a divorce obtained in state court with the clerk of the tribal court.
Excerpted from Divorce in Alabama by Jessica Kirk Drennan. Copyright © 2013 Jessica Kirk Drennan, Esq.. Excerpted by permission of Addicus Books, Inc..
All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.
Excerpts are provided by Dial-A-Book Inc. solely for the personal use of visitors to this web site.
Table of Contents
1 Understanding the Divorce Process,
2 Coping with Stress during the Divorce Process,
3 Working with an Attorney,
4 Attorney Fees and Costs,
5 The Discovery Process,
6 Mediation and Negotiation,
7 Emergency: When You Fear a Spouse,
8 Child Custody,
9 Child Support,
11 Division of Property,
12 Benefits: Insurance, Retirement, and Pensions,
13 Division of Debts,
15 Going to Court,
16 The Appeals Process,
About the Author,