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Frequently Asked Questions about Divorce and Child Custody in Alabama.

Attorney David Oglesby answers common questions about Divorce.

 

1.   Are there any residency requirements for divorce in Alabama?

 

If the defendant is not a resident of Alabama, then the person filing the complaint for divorce must have been a resident of the state for at least six continuous months.

 

 

2.  What type of court handles divorces in Alabama?

 

In Alabama, a Complaint for Divorce is filed in the Circuit Court of the county in which the defendant (the person being sued for divorce) resides, the county in which the parties resided at the time of separation.

 

If the defendant is a non-resident of the state then the case must be filed in the circuit court in the county where that plaintiff resides.

 

3.  What is the final result of divorce called?

 

The Final Judgment of Divorce or Divorce Decree.

 

4.  How long must one wait when filing for divorce?

 

Alabama law requires a 30 day waiting period to take place from the filing until a final judgment of divorce is entered.

 

5.  Can I remarry immediately after I am granted a divorce?

 

No. Neither party to a divorce may remarry until sixty days after the judgment is entered.   The only exception to this is if the divorce parties remarry each other.

 

6.  What are the grounds for divorce in Alabama?

 

  1.  If, at the time of the marriage, either party was physically and incurably incapacitated from entering into the marriage state.

 

  2.  For adultery.

 

  3.  For voluntary abandonment from bed and board for one            (1) year prior to the filing of the complaint.

 

  4. Imprisonment in the penitentiary of this or any other state for two years, with the sentence being for seven years or longer.

 

  5.  The commission of the crime against nature, whether with mankind or beast, either before or after marriage.

 

  6. For becoming addicted after marriage to habitual drunkenness or to habitual use of opium, morphine, cocaine or other like drug.

 

  7. Incompatibility.

 

  8.  Confinement in a mental hospital for a period of five successive years, if such party is hopelessly and incurably insane at the time of the filing of the complaint.

 

  9.  An irretrievable breakdown of the marriage where further attempts at reconciliation are impractical or futile and not in the best interests of the parties or family.

 

  10. In favor of the husband, when the wife was pregnant at the time of marriage, without his knowledge or agency.

 

  11.  In favor of either party to the marriage in cases of domestic violence or reasonable apprehension of such violence.

 

  12.  In favor of the wife when the wife has lived separate and apart from the bed and board of the husband for two years and without support from him for two years next preceding the filing of the complaint, and she has bona fide resided in this state during said period. [Based on Alabama State Divorce Code - Chapter 2, Section 30-2-1]

 

7.  What is a legal separation?

 

If the court determines that a husband and wife have met the requirements for the dissolution of a marriage, that the

marriage is irretrievably broken, or the couple is incompatible of temperament or that one of the two or both desires to live apart from the other.

 

A decree of legal separation does not terminate the marriage.  The court will consider the approval of child custody and may enter an order for child custody.

 

8.  How is property divided in a divorce?

 

Alabama is an equitable distribution state.  What that means is that if the parties cannot agree on terms,  the property will be distributed in an equitable way.  Equitable does not necessarily mean equal.   Property owned by the wife prior to the marriage remains hers.

 

All property and assets accumulated during the marriage will be divided, determined by the discretion of the judge, equitably.

 

9.  What is alimony?

 

The awarding of alimony is determined by the need of one spouse requesting alimony and the ability of the other spouse to pay. If fault is a factor in the divorce, the judge has the right to make an allowance to either spouse out of the estate of either spouse, or not make an allowance as the circumstances of the case may justify. However, any property acquired prior to the marriage of the parties or by inheritance or gift may not be considered in determining the amount of alimony. Alimony is usually not considered in a marriage of less than 10 years.

 

10.  What about my name?

 

Upon request, the wife may resume the use of her maiden name or any previous surname. Upon application of any interested party, the divorced wife may be enjoined from the use of the given name or initials of the divorced husband.

 

 

11.  What about child 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. The court shall in every case consider joint custody but may award any form of custody which is determined to be in the best interest of the child. In determining whether joint custody is in the best interest of the child, the court shall consider the same factors considered in awarding sole legal and physical custody and all of the following factors:

 

(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 or children and the other parent.

 

(4) Any history of or potential for child abuse, spouse abuse, or kidnapping.

 

(5) The geographic proximity of the parents to each other as this relates to the practical considerations of joint physical custody. [Based on Alabama State Divorce Code - Chapter 3, Section 30-3-150, 30-3-152]

 

12.  What about child support?

 

Child support is determined using the Income Shares model, with the theory that children should continue to receive that same amount of support as if the parents were still together. In making a determination of child support, the court shall apply Rule 32 of the Alabama Rules of Judicial Administration. For more information about this contact us at the Bouloukos, Oglesby & Mitchell.

 

 

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