Legal Aspects of Divorce will base the ruling on the oral or written testimo- and are generally expressed in terms of reason- Divorce is an increasingly common occurrence in ny of only the party who filed the suit. able times and places upon reasonable notice; but our society. Yet its effect on the parties, their prop- a divorce degree can also set out specific visitation erty and children can often be devastating. Once Non-Contested Divorces privileges at certain times and places, i.e.: every entered, a Divorce Decree can establish the parties’ The most common type divorce today is non- other weekend, certain holidays, birthdays, etc. A rights permanently. If you have decided to obtain contested divorce. This means that both husband mediated agreement can help you set a schedule. a divorce, you should consult your personal attor- and wife agree to a divorce. In such a divorce, the The court may also, on request, award visitation ney to assist you. Few lawyers consider themselves parties usually enter into a written marital agree- rights to the grandparents of the children. marriage counselors, but they are concerned for ment defining their rights and duties and other your well-being and how a divorce action affects issues of the divorce. Child Support you. This brochure is an attempt to present you Once the determination is made that a divorce with some issues involved in a divorce. Marital Agreement and Mediation should be granted, the primary concern of the This agreement should include all of the terms court becomes the well-being of the minor children Grounds for Divorce of the divorce, specifically matters relating to the of the parties. It is the responsibility of the court to The basis or cause for which a court may grant children and to the property owned by the parties. determine the amount that the non-custodial par- a divorce is commonly referred to as a “ground” A mediator working with the parties and their ent is responsible to contribute for support of the for divorce. There are many different grounds attorneys is one of the best ways to develop an minor children. agreement that is acceptable to both parties. The The court must use the Child Support Guidelines for divorce in Alabama all of which are created agreement is then presented to the judge, and if adopted by the Alabama Supreme Court in setting by statutes. The most commonly used ground is the judge approves it, a divorce is granted, and the the amount of child support, unless the court spe- incompatibility. In practice, it is ordinarily not dif- marital agreement is made a part of the divorce cifically finds that following the Guidelines would ficult to convince the court that incompatibility decree. By mediating the issues and making their be unjust and inappropriate. The court combines exists sufficient to dissolve the marriage relation- own agreement, parties avoid the necessity of a the income of the divorcing parents, determines ship. A divorce based on this ground is commonly trial. For more information on mediation, review from the Guidelines the applicable amount of child referred to as a “no fault” divorce. However, even the brochure “Parents are Forever: Mediating support for the number of children of the mar- though a finding of fault is not necessary to the Divorce and Post Divorce Issues” available at riage based upon that income, adjusts this amount court’s decision to grant a divorce, it is often an www.alabar.org or by calling (334) 269-0409, and for work-related child care expenses and health important factor in such matters as child custody, talk with your lawyer. insurance premiums, and then assigns a portion of alimony, and division of property. that support amount to the non-custodial parent Other grounds for which divorce in Alabama may Child Custody and Visitation Rights based on his/her percentage share of the combined be granted include: adultery, desertion, penitentiary In a divorce action, the court determines custody income. imprisonment for certain prolonged periods, addic- and visitation of the minor children of the parties. The most important factors to be considered by tion to alcohol or drugs, mental incapacity, cruelty, The determination is based on the discretion of the court in making an award of child support are or conditions which existed at the time of the mar- the court guided by consideration of the following the needs of the children and the parent’s ability riage without the knowledge of the other party such factors: best interest and welfare of the children, to earn and pay his/her portion of the support. A as pregnancy and incurable physical problems. fault of the parties, character and conduct of each parent’s obligation to pay child support may be parent, age and sex of the children, past care and based on his or her demonstrated ability to earn a Divorce by Default or Trial custody of the children, economic conditions of the certain amount of money, not what that parent is Two common methods of obtaining a divorce are parents, preference of the children, and agreement choosing to earn. by default or trial. A default divorce occurs when of the parents. Child support is paid until the child reaches the the party against whom the divorce suit is brought Future parenting of the children is very impor- age of majority, but can be extended beyond that fails to respond within the time limit set by law. tant, and you should give your attorney all relev- time under certain circumstances, such as during If the defendant files a response to the complaint, ent information that might affect with which party post majority education (college), or where the the case will be set for a trial. In this set of circum- the children will live. The courts favor a natural child is mentally or physically disabled. parent having physical custody of the children, stances, unless the case is settled prior to its going but it can award custody to other parties such as Real And Personal Property Settlement to trial, there will be an actual trial before the judge grandparents or even unrelated persons if it is in One of the functions of the court in a divorce with each party having the right to call witnesses. the best interest of the children. proceeding is to make a division of the property In either case the judge must decide all of the The parent who does not have the children liv- owned by the parties. It is within the discretion pertinent issues, such as whether or not a divorce ing with him or her (non-custodial parent) has the of the court to order a transfer of property owned will be granted, custody of the children, amount of right to visit the children or have them visit him or individually by either spouse or jointly-held prop- child support, alimony, and division of property. her. Visitation rights are usually set by the judge erty in order to “do equity” between the parties. The difference is that if there is a default, the judge The court has the power to order either party to with your attorney. Attorney’s fees differ greatly give or convey his or her interests in stock, vehicles within the state. Noncontested divorces generally or real estate to the other spouse in exchange for cost less and the attorney’s fees increase with the Legal the release of marital obligations. complexity of any contested divorce. Factors which Because the divorcing husband and wife are most affect the attorney’s fee in a divorce include child familiar with their own property, the divorcing custody, the size and complexity of any property couple should work out a division of assets that is settlement, tax advice, alimony settlement, fault of Aspects acceptable to both and incorporate the agreement the parties, etc. into the divorce decree. While a court is not neces- It should be noted that an attorney cannot ethi- sarily bound by an agreement for division, such cally represent both the husband and wife in a property settlements are looked upon with favor. If divorce proceeding. Further, an attorney cannot of Divorce no agreement is provided, the court will make the ethically handle a domestic relations matter for a division based on the needs and interests of the par- fee that is contingent upon securing a divorce or ties as shown through testimony at trial. The divi- upon the amount of alimony, support or property sion of property between the husband and wife and settlement awarded. awarding of alimony and child support payments often result in adverse and unexpected tax conse- Alimony quences that may be avoided with proper planning. Alimony is based historically on the commonlaw right of a wife to be supported by her husband Legal Separation and Separate even after a divorce unless she forfeits it by her Maintenance misconduct. But today, either a husband or wife Married couples in Alabama have two divorce may be entitled to alimony if the court determines related remedies that fall short of an absolute he or she needs support and the other party is divorce: able to pay. There are two types of alimony: tem- 1. Legal separation may be appropriate where porary and permanent. Temporary alimony is one party wishes to live apart from his or her mate awarded to the needy party during the time after but does not desire to obtain an absolute divorce. a divorce suit is filed while awaiting trial or final Neither party can remarry while the decree is in court decision. Permanent alimony is that which is effect. A court approving a petition for a legal sep- awarded by the court in its final decree. Permanent aration may award temporary support, alimony, alimony can either be “in gross” which is a fixed child support, custody of children, and make all total amount and cannot be changed, or “periodic” other orders like those made when a final divorce which is an amount payable on a regular basis is entered. without a fixed total and which can be modified 2. Separate maintenance differs from the con- under some circumstances. cept of a legal separation in several respects. A The award of alimony and its amount are com- party requesting separate maintenance need not pletely discretionary with the court which consid- prove that he or she has the grounds to obtain a ers such factors as the length of the marriage and final divorce and is purely within the discretion the age, earning capacity, health, conduct, educa- of the court. A petition for separate maintenance tion, and income of each of the parties. Alimony may be sought by the wife when a husband and is separate and apart from any property division wife are living apart and, through no fault of the between the parties. However, as a practical mat- wife, the husband refuses to support either the ter, there is often a relationship between the two wife or his dependents. The amount of the award issues, since some of the same factors are used as is based on the husband’s income and the wife’s guides to property settlements. needs for herself and her minor children. The fact that a wife earns a separate living will not bar her NOTE: This brochure, based upon Alabama law, is from asking a court to enter an order of separate issued to inform, not to advise. It is distributed to help you maintenance. Mediation may also be useful for obtain your rights under the law and is published by: either of the above. Published by Alabama State Bar Attorney Fees 415 Dexter Avenue You should discuss the amount of the attorney’s Montgomery, Alabama 36104 fees and who will pay them in your first discussion (334) 269-1515 January 2013