In Alabama, you can base your divorce on fault grounds or ask for a no-fault divorce. A no-fault divorce means that your marriage is ending because of an “irretrievable breakdown of the marriage,” and you don’t need any other grounds for the divorce. In contrast, a fault divorce is based on some act that one party committed; examples are abandonment, adultery, domestic violence, and substance abuse. The entire list of grounds can be found at Ala.Code 1975 § 30-2-1. Either party can seek a divorce based on separation when the spouses have been separated for two years.
You have a choice between filing based on fault or asking for a no-fault divorce. If you and your spouse have a dispute about alimony, property division, or child custody, the judge may also consider fault grounds.
You must live in Alabama for six months before you can file a complaint for divorce. Once the complaint is filed, you must wait at least 30 days before a final judgment of divorce can be entered.
Alabama uses a system of equitable division to divide marital property and debts. That means that the judge doesn’t have to divide your property exactly equally, but can divide it based on what is fair and equitable. (Of course, you can always divide your property yourselves and avoid court entirely if your divorce is uncontested.) Marital property is property that was acquired during your marriage; anything that either spouse acquired or earned before marriage is that spouse’s separate property. In Alabama, a wife’s earnings during marriage are considered her separate property, as are her personal possessions and clothing, even if acquired during marriage.
One spouse may be required to provide support for the other after a divorce. In deciding the amount of support, the judge considers only the income of the paying party, and not any separate assets that party might have. If the spouses have been married more than ten years, retirement benefits may also be considered and used to pay alimony, but if the marriage was shorter than ten years, the spouse who earned the benefits keeps all of them. Alabama has two types of alimony: “alimony in gross,” which is a lump sum payment intended to cover all or most of the paying spouse’s responsibility for future support, and “periodic alimony,” which is paid monthly on an ongoing basis until the recipient spouse remarries or lives with someone of the opposite sex or until the date set by the court for termination of support, whichever comes first. Alimony in gross isn’t modifiable by the court, but periodic alimony is.
Alabama has guidelines for child support that judges will follow unless you can show that there’s a reason to deviate from the guidelines. Most child support is paid through an income withholding order that requires the paying parent’s employer to withhold a portion of the parent’s paycheck and send it to the other parent instead, usually through the state’s child support enforcement agency. Alabama’s Department of Human Resources is the agency that enforces child support orders. You can ask for a modification of child support if the current guideline amount would be different by more than 10% from the original order, or if circumstances have changed significantly.
Child custody decisions are based on the best interests of the children involved. In Alabama, the court may grant primary custody to either parent based on what is “right and proper,” unless the wife has abandoned the husband and the children are older than seven, in which case there is a presumption that the husband should have custody. Once custody is set, a custodial parent who wants to move away has to show why the move would be in the child’s interest.
(See Child Custody in Alabama for more information).