Legal Aspects of Divorce Grounds for Divorce Divorce by Default or

Legal Aspects of Divorce

Divorce is an increasingly common occurrence in

our society. Yet its effect on the parties, their prop-

erty and children can often be devastating. Once

entered, a Divorce Decree can establish the parties’

rights permanently. If you have decided to obtain

a divorce, you should consult your personal attor-

ney to assist you. Few lawyers consider themselves

marriage counselors, but they are concerned for

your well-being and how a divorce action affects

you. This brochure is an attempt to present you

with some issues involved in a divorce.

Grounds for Divorce

The basis or cause for which a court may grant

a divorce is commonly referred to as a “ground”

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. In practice, it is ordinarily not dif-

ficult to convince the court that incompatibility

exists sufficient to dissolve the marriage relation-

ship. A divorce based on this ground is commonly

referred to as a “no fault” divorce. However, even

though a finding of fault is not necessary to the

court’s decision to grant a divorce, it is often an

important factor in such matters as child custody,

alimony, and division of property.

Other grounds for which divorce in Alabama may

be granted include: adultery, desertion, penitentiary

imprisonment for certain prolonged periods, addic-

tion to alcohol or drugs, mental incapacity, cruelty,

or conditions which existed at the time of the mar-

riage without the knowledge of the other party such

as pregnancy and incurable physical problems.

Divorce by Default or Trial

Two common methods of obtaining a divorce are

by default or trial. A default divorce occurs when

the party against whom the divorce suit is brought

fails to respond within the time limit set by law.

If the defendant files a response to the complaint,

the case will be set for a trial. In this set of circum-

stances, unless the case is settled prior to its going

to trial, there will be an actual trial before the judge

with each party having the right to call witnesses.

In either case the judge must decide all of the

pertinent issues, such as whether or not a divorce

will be granted, custody of the children, amount of

child support, alimony, and division of property.

The difference is that if there is a default, the judge

will base the ruling on the oral or written testimo-

ny of only the party who filed the suit.

Non-Contested Divorces

The most common type divorce today is non-

contested divorce. This means that both husband

and wife agree to a divorce. In such a divorce, the

parties usually enter into a written marital agree-

ment defining their rights and duties and other

issues of the divorce.

Marital Agreement and Mediation

This agreement should include all of the terms

of the divorce, specifically matters relating to the

children and to the property owned by the parties.

A mediator working with the parties and their

attorneys is one of the best ways to develop an

agreement that is acceptable to both parties. The

agreement is then presented to the judge, and if

the judge approves it, a divorce is granted, and the

marital agreement is made a part of the divorce

decree. By mediating the issues and making their

own agreement, parties avoid the necessity of a

trial. For more information on mediation, review

the brochure “Parents are Forever: Mediating

Divorce and Post Divorce Issues” available at

www.alabar.org or by calling (334) 269-0409, and

talk with your lawyer.

Child Custody and Visitation Rights

In a divorce action, the court determines custody

and visitation of the minor children of the parties.

The determination is based on the discretion of

the court guided by consideration of the following

factors: best interest and welfare of the children,

fault of the parties, character and conduct of each

parent, age and sex of the children, past care and

custody of the children, economic conditions of the

parents, preference of the children, and agreement

of the parents.

Future parenting of the children is very impor-

tant, and you should give your attorney all relev-

ent information that might affect with which party

the children will live. The courts favor a natural

parent having physical custody of the children,

but it can award custody to other parties such as

grandparents or even unrelated persons if it is in

the best interest of the children.

The parent who does not have the children liv-

ing with him or her (non-custodial parent) has the

right to visit the children or have them visit him or

her. Visitation rights are usually set by the judge

and are generally expressed in terms of reason-

able times and places upon reasonable notice; but

a divorce degree can also set out specific visitation

privileges at certain times and places, i.e.: every

other weekend, certain holidays, birthdays, etc. A

mediated agreement can help you set a schedule.

The court may also, on request, award visitation

rights to the grandparents of the children.

Child Support

Once the determination is made that a divorce

should be granted, the primary concern of the

court becomes the well-being of the minor children

of the parties. It is the responsibility of the court to

determine the amount that the non-custodial par-

ent is responsible to contribute for support of the

minor children.

The court must use the Child Support Guidelines

adopted by the Alabama Supreme Court in setting

the amount of child support, unless the court spe-

cifically finds that following the Guidelines would

be unjust and inappropriate. The court combines

the income of the divorcing parents, determines

from the Guidelines the applicable amount of child

support for the number of children of the mar-

riage based upon that income, adjusts this amount

for work-related child care expenses and health

insurance premiums, and then assigns a portion of

that support amount to the non-custodial parent

based on his/her percentage share of the combined

income.

The most important factors to be considered by

the court in making an award of child support are

the needs of the children and the parent’s ability

to earn and pay his/her portion of the support. A

parent’s obligation to pay child support may be

based on his or her demonstrated ability to earn a

certain amount of money, not what that parent is

choosing to earn.

Child support is paid until the child reaches the

age of majority, but can be extended beyond that

time under certain circumstances, such as during

post majority education (college), or where the

child is mentally or physically disabled.

Real And Personal Property Settlement

One of the functions of the court in a divorce

proceeding is to make a division of the property

owned by the parties. It is within the discretion

of the court to order a transfer of property owned

individually by either spouse or jointly-held prop-

erty in order to “do equity” between the parties.

The court has the power to order either party to

give or convey his or her interests in stock, vehicles

or real estate to the other spouse in exchange for

the release of marital obligations.

Because the divorcing husband and wife are most

familiar with their own property, the divorcing

couple should work out a division of assets that is

acceptable to both and incorporate the agreement

into the divorce decree. While a court is not neces-

sarily bound by an agreement for division, such

property settlements are looked upon with favor. If

no agreement is provided, the court will make the

division based on the needs and interests of the par-

ties as shown through testimony at trial. The divi-

sion of property between the husband and wife and

awarding of alimony and child support payments

often result in adverse and unexpected tax conse-

quences that may be avoided with proper planning.

Legal Separation and Separate

Maintenance

Married couples in Alabama have two divorce

related remedies that fall short of an absolute

divorce:

1. Legal separation may be appropriate where

one party wishes to live apart from his or her mate

but does not desire to obtain an absolute divorce.

Neither party can remarry while the decree is in

effect. A court approving a petition for a legal sep-

aration may award temporary support, alimony,

child support, custody of children, and make all

other orders like those made when a final divorce

is entered.

2. Separate maintenance differs from the con-

cept of a legal separation in several respects. A

party requesting separate maintenance need not

prove that he or she has the grounds to obtain a

final divorce and is purely within the discretion

of the court. A petition for separate maintenance

may be sought by the wife when a husband and

wife are living apart and, through no fault of the

wife, the husband refuses to support either the

wife or his dependents. The amount of the award

is based on the husband’s income and the wife’s

needs for herself and her minor children. The fact

that a wife earns a separate living will not bar her

from asking a court to enter an order of separate

maintenance. Mediation may also be useful for

either of the above.

Attorney Fees

You should discuss the amount of the attorney’s

fees and who will pay them in your first discussion

with your attorney. Attorney’s fees differ greatly

within the state. Noncontested divorces generally

cost less and the attorney’s fees increase with the

complexity of any contested divorce. Factors which

affect the attorney’s fee in a divorce include child

custody, the size and complexity of any property

settlement, tax advice, alimony settlement, fault of

the parties, etc.

It should be noted that an attorney cannot ethi-

cally represent both the husband and wife in a

divorce proceeding. Further, an attorney cannot

ethically handle a domestic relations matter for a

fee that is contingent upon securing a divorce or

upon the amount of alimony, support or property

settlement awarded.

Alimony

Alimony is based historically on the commonlaw

right of a wife to be supported by her husband

even after a divorce unless she forfeits it by her

misconduct. But today, either a husband or wife

may be entitled to alimony if the court determines

he or she needs support and the other party is

able to pay. There are two types of alimony: tem-

porary and permanent. Temporary alimony is

awarded to the needy party during the time after

a divorce suit is filed while awaiting trial or final

court decision. Permanent alimony is that which is

awarded by the court in its final decree. Permanent

alimony can either be “in gross” which is a fixed

total amount and cannot be changed, or “periodic”

which is an amount payable on a regular basis

without a fixed total and which can be modified

under some circumstances.

The award of alimony and its amount are com-

pletely discretionary with the court which consid-

ers such factors as the length of the marriage and

the age, earning capacity, health, conduct, educa-

tion, and income of each of the parties. Alimony

is separate and apart from any property division

between the parties. However, as a practical mat-

ter, there is often a relationship between the two

issues, since some of the same factors are used as

guides to property settlements.

NOTE: This brochure, based upon Alabama law, is

issued to inform, not to advise. It is distributed to help you

obtain your rights under the law and is published by:

Alabama State Bar

415 Dexter Avenue

Montgomery, Alabama 36104

(334) 269-1515

January 2013

Published by

Legal

Aspects

of Divorce