Alabama family law matters can encompass a variety of issues that can have a serious impact on individual’s lives. Some of the main issues that present themselves in Alabama’s family law courts are divorce, child custody, child support, alimony, the division of property, and father’s rights. Alabama has a confusing set of laws and regulations that govern these types of cases so it is essential that anyone involved in a family law case gain an understanding of the laws of Alabama. Our primer here will help to educate Alabama residents so that he or she can apply the facts of their specific case to the laws that apply. Learning the law is step one. Step two is deciding if you need additional Alabama family law help and advice, and we can help there as well by connecting you – for a free evaluation – to a local family law professional who can help even more.
Alabama divorce statute (law), found at Title 30, Chapter 2 of the Code of Alabama, provides the basis for a divorce. Alabama allows spouses to file for divorce based on either “fault” or “no-fault” divorce grounds. A fault grounds divorce is governed by Section 30-2-1 of the Code of Alabama and includes the following reasons (also known as “grounds”):
- If, at the time of marriage, either party was physically incapacitated;
- Voluntary abandonment for at least one-year;
- Imprisonment of a spouse for at least 2-years with a sentence of greater than 7 years;
- The commission of a crime against nature, whether with mankind or beast, either before or after marriage;
- Drug or alcohol addiction after the date of marriage;
- Upon application of either husband or wife, when the court is satisfied rom all testimony in the case that there exists such a complete incompatibility of temperament that the parties can no longer live together;
- Incurable insanity and confinement to a mental hospital for a period of time greater than 5-years;
- When the court find there has been an irretrievable breakdown of the marriage and that further attempts at reconciliation are impractical or futile and not in the best interests of the parties or family;
- In favor of the husband, if the wife was pregnant at the time of marriage and the husband was unaware and it was not his child;
- Physical violence against the other spouse;
- For the wife, when she has lived separate and apart from the husband for a period of time greater than 2-years
The above grounds for divorce are the available fault and no-fault grounds for divorce that the State of Alabama allows for ending a marriage. The most common type of divorce in Alabama is a no-fault divorce (Section 30-2-1(9)), because neither party alleges the other has done anything wrong, they just agree that they do not get along together and that the marriage is irretrievably broken.
The main reason for filing a no-fault divorce is that it is much faster, less expensive, and easier to do. When you file a fault-based divorce, such as adultery, you will have to prove your case to the judge with evidence, and this is more than just your testimony. Testimony from witnesses, pictures, video, and other forms of documentation would be necessary to prove that adultery took place. The cost of this can be overwhelming for many people and can take well over a year to get to trial. This is why a no-fault divorce in Alabama is often the choice most divorcing couples make.
However, filing and proving a fault-based divorce (example: physical violence, adultery, etc.) can have an impact on how the judge divides property or makes a child custody decision. These are the main reasons why fault based divorces are filed.
Residency Rules in Alabama
Alabama statute, specifically Section 30-2-5 of the Code of Alabama, requires that at least one of the parties be a resident of the State of Alabama for at least 6-months prior to filing the complaint for divorce. The Alabama legislature has written this statute specifically so that people that live in another state cannot quickly move to Alabama to try and take advantage of their divorce laws.
Mandatory Waiting Period
The State of Alabama also requires, under Section 30-2-8.1 of the Code of Alabama, that parties to a divorce must wait a minimum of 30-days prior to the entry of a final judgment of divorce. This means that the soonest a person can get divorced in Alabama, once a divorce has been filed, is 30-days. Alabama also imposes on divorcing couples a mandatory waiting period until they can remarry as well. Section 30-2-10 of the Code of Alabama states that divorcing parties are not allowed to get remarried until after 60-days has passed since entry of the judgment of divorce.
Property Division in Alabama
Alabama differs from many other southern states in that it follows what is known as an “equitable distribution” of property during divorce. This means that the judge will not necessarily divide the marital property on an even 50/50 basis, but will do so according to what the judge thinks is fair and “equitable” under the circumstances of each particular case. The relevant statute that governs the distribution of marital property can be found at Title 30 of the Code of Alabama.
Alabama will divide the party’s property depending on whether it is marital property or non-marital property. Marital property is property that the spouses acquired during the marriage. Non-marital property is property that the individual spouse acquired before the marriage or during the marriage via inheritance or a few other means. This means that, even if one spouse purchases a car or other property during the marriage with their own earned income, the car or other property is owned jointly by both spouses equally.
In fact, Alabama law allows for the division of each spouse’s retirement accounts as well. When spouses have been married for over 10-years, a judge may divide the marital portion of the retirement account or pension and give a portion to the other spouse. In most instances, this would be done via a document known as a QDRO (Qualified Domestic Relations Order).
Alabama allows wives’ to acquire and keep separate, non-marital property in some small instances, but does not extend the same right to husbands. In fact, the Code of Alabama Section 30-4-1 states: “all property of the wife, held by her previous to the marriage or to which she may become entitled after the marriage in any manner, is the separate property of the wife and is not subject to the liabilities of the husband.” This is not an absolute and does not guarantee the wife all the property she acquires or all the income she earns (see Code of Alabama Section 30-4-2).
Alimony or Spousal Maintenance
Alabama statute, found in Title 30, Article 3, allows for the awarding of alimony from one spouse to another for a variety of reasons. Section 30-2-50 of the Alabama Code of Laws allows the courts to order an allowance of spousal support (alimony), “…suitable to the spouse’s estate and the condition in life of the parties…” During the pendency of a divorce case, a spouse can be awarded alimony during the divorce case and still receive an award of alimony post-divorce as well.
The court determines alimony awards based on the needs of the spouse to whom alimony will be received, and the ability of the payor spouse. The court then takes into account various factors (see Alabama Code of Laws Section 30-2-51) such as:
- The separate property and assets of each spouse;
- Marital assets that will be equitably divided;
- The earning ability of each spouse;
- Each spouses age and health;
- The standard of living the parties enjoyed during the marriage;
- Whether one spouse was a homemaker;
- The spouses future earning capabilities; or
- Whether one spouse was at fault for the breakdown of the marriage.
Normally, the courts in Alabama retain and reserve the power to modify any award of alimony in the future. Section 30-2-55 allows for alimony to terminate upon the cohabitation or the remarriage of the spouse receiving alimony. Keep in mind that Alabama courts can specifically deny or accept awards of alimony based on the fault of one of the parties, such as adultery or domestic violence.
Alabama Child Support
Basically, child support is a sum of money paid by one parent to the other to support the minor children of the relationship. Because child support is set by statute, it is the one element of an Alabama family law case that can be figured out by following a set formula (albeit a confusing formula). The Administrative Office of Courts for the State of Alabama has established specific child support guidelines.
Alabama family law requires that both parents have a legal obligation to provide financial support for the minor children born to them, whether married or unmarried. The courts use a formula known as the “Income Shares Model” for purposes of determining the amount of money that the non-residential parent must pay to the residential parent for child support. This formula can be determined by filling out and completing the above form found at Rule 32, Alabama Rules of Judicial Administration. This makes it necessary to complete various forms that can be confusing but once completed, will show the amount of child support that is to be paid. Form CS-41, the Child Support Obligation Income Statement/Affidavit requires both parents to include their gross monthly income (before taxes, insurance, or any other amount is taken out of their paycheck), the name and address of each parents employer, whether the children are covered by health insurance and the cost of providing said insurance, and any other amounts paid by either parent to support a child from a different relationship. The next step is to complete Form CS-42 Child Support Guidelines, where the information gathered from form CS-41 will be combined to determine the amount of child support that must be paid to support the minor child. You will then use form Appendix to Rule 32 Child Support Schedule to determine the support amount on line 4 of the Form CS-42 Child Support Guidelines worksheet. Completing the form you will see the amount of child support that should be paid by the noncustodial parent to the custodial parent.
The court does not necessarily have to follow the child support guidelines in their strictest sense if there is something out of the ordinary involved, such as where both parents spend 50% of the time with the children, if one parent makes millions of dollars a year, or issues such as disability of one parent or the child. This is known as a “deviation from guidelines” amount of child support.
Modification of Child Support
In addition to the courts allowing for a deviation in certain rare circumstances, the court can also allow for either party to modify an existing child support order for various reasons. The test for whether a child support order can be modified and either raised or lowered is dependent on one party alleging and proving a “substantial change in circumstances.” This may mean the loss of a job, extraordinary bills (due to a disability of a child), or a large increase in income through employment promotions or job change. However, Rule 32. Child Support Guidelines, Section A(3) requires a change in the amount of support by a minimum of 10%, upwards or downwards. An amount less than a 10% change will not be allowed for a child support modification.
Alabama Child Custody
Alabama family law judges decide child custody in Alabama cases on what is known as the “best interests of the child” standard. The Code of Alabama, Section 30-3-150 states that Alabama prefers to award joint custody to the parents. Alabama family law courts prefer to award child custody to both parents whenever possible. This may include joint physical custody, which means both parents spend time with the children, joint legal custody, which means that both parents have the right to make decisions regarding the way the children are raised, or both. The law (Section 30-3-150) specifically states:
30-3-150: “Joint 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 specific details used when making a “best interests of the child” determination come from an Alabama Supreme Court case known as: Ex parte Devine 398 So.2d 686 (1981) found here. The court laid out several factors to be examined in making a “best interests of the child” decision, the elements of which were compiled and taken from multiple other Alabama court cases. The main factors are:
- The age and sex of the child involved;
- The emotional, social, moral, material and educational needs of the child;
- The respective home environments offered by the parents,
- The characteristics of the person seeking custody, such as age, character, stability in living and work environment, mental and physical health;
- The ability of either parent to provide for the moral, emotional, social, and educational needs of the child;
- The interpersonal relationship between the child and each parent;
- The interpersonal relationship between each of the children;
- The effect on the child of changing or keeping the same custodial residence;
- The preference of the child if the child is old enough and mature enough (as determined by a judge);
- The recommendation by any expert witness (such as a counselor or court appointed guardian ad litem);
- Any other available alternatives; and
- Any other relevant information.
Joint custody is not appropriate in every situation, however, and the court will always consider the above factors to deem what arrangement is in the best interests of the child. Whether the court orders joint custody or not, both parents will be able to have access to doctors’ appointments and information, school information, and both parents will be granted liberal parenting time with their children. Even when an award of joint custody does not go the way a parent wants and the other parent is awarded sole custody, the non-residential parent will still be granted frequent visitation time with the children to continue to foster a loving and close relationship.
Alabama Father’s Rights
Father’s rights in an Alabama family law matter pose a difficult decision for a judge to decide. In the past, judges followed a belief that the mother was a better primary caregiver of a minor child and a father had little chance of winning custody of their child. This was based on what is known as the “tender year’s doctrine.” The tender year’s doctrine basically stated that mothers are more important to children for purposes of raising and cultivating a child during its formative, or, tender, years of life. The Alabama Supreme Court Case of Ex parte Devine 398 So.2d 686 (1981) overruled that notion and stated that fathers can be as good a custodian as a mother. Even though this case was decided in 1981, for decades the Alabama courts still favored mothers as the primary custodian of children.
However, with the changing of gender roles in America today with women having entered the workforce at a rate of double since the 1950’s, the dynamic of the family has changed substantially. No longer are mother’s always stay at home parents while the father’s go out to work each day. Because of this change and the change to a normal two-parent working home, father’s rights to custody have increased across the country, as well as in Alabama family law cases. Father’s still have an upward battle to fight, which means they must work extra hard to prove that they are the better parent, and this means avoiding pitfalls that can derail and ruin their custody case.
Being involved on a regular basis with the children, being present at all school functions, sharing bedtime and feeding responsibilities, and taking the children to doctor’s appointments all show that a father is as dedicated to his children as the mother is. Father’s rights advocates have carved a niche out of the family law arena and fight for equal parenting rights – this movement has allowed hundreds of thousands of men across America to gain either custody or visitation rights for their children.
The Next Step
The first and most important step is learning the laws of the State of Alabama as they apply to family law matters. Applying the specific facts and situations of a person’s individual case to these laws is essential in determining what rights each person has in a family law case, whether it is a divorce, child support, or child custody matter. The next step is to determine whether additional help is needed to win your case. We can help by connecting you with a local Alabama family law professional –at no charge – who can provide you with further information should you decide to hire legal representation. Continue reading more about family law cases by reading our blog so that you can gain an understanding of the rights that you have when involved in one of these matters in the State of Alabama.