• GROUNDS FOR DIVORCE
• RESIDENCY REQUIREMENT
• CHRONOLOGY OF DIVORCE PROCEEDINGS
• UNCONTESTED DIVORCE
• DUAL REPRESENTATION
• SPECIFICS OF DIVORCE NEGOTIATION
• Property Division
• Alimony
• Child Support
• Child Custody and Visitation Rights
• Sexual Relations/Dating
• Reconciliation
• Changing the Wife's Name
• Legal Separation
• Remarriage
• TEMPORARY RELIEF
• RESPONSIBILITIES OF ATTORNEY AND CLIENT
• CONTACTING THE LAW FIRM
• LEGAL FEES AND COSTS
• ENFORCEMENT OF DIVORCE
• MODIFICATION OF DIVORCE DECREE
• ANNULMENT
• CONCLUSION
• DISCLAIMER
• STANDARD VISITATION
• STANDARD OUT OF STATE VISITATION

HOW AN ALABAMA DIVORCE CASE WORKS

While this material does not address the specifics of your case, it provides general information regarding Alabama divorce law.

GROUNDS FOR DIVORCE
Alabama law provides many grounds for divorce. However, since the adoption of the concept of "no-fault" divorce by the Alabama Legislature in the 1970's, the grounds of incompatibility and irretrievable breakdown of the marriage are the most common bases for divorce in the state. Other grounds for divorce in Alabama include: Physical and incurable incapacity to enter into marriage, physical violence, adultery, voluntary abandonment for one year, imprisonment, conviction of a crime after marriage, habitual user of drugs, and confinement to a mental hospital. It is also grounds for the husband to divorce the wife if she is pregnant at the time of marriage without the knowledge or agency of the husband, and grounds for the wife to divorce if she has lived separate and apart from her husband without his support for two years. A Complaint for Divorce must allege one or more grounds, which the person filing for divorce (the "Plaintiff") must prove by testimony, either orally or in writing. Case law has established the type and amount of evidence necessary to prove a certain ground for divorce. Based upon our discussions with you and the information you provide to us, we will file the requisite legal documents with the court.

RESIDENCY REQUIREMENT
In order for an Alabama court to have jurisdiction to grant a divorce, you must satisfy the state's residency requirement. If both parties, or the Defendant, permanently reside in Alabama, the requirement is fulfilled. If the Defendant is not an Alabama resident, the Plaintiff must have been domiciled in Alabama for six months immediately preceding the filing of the divorce complaint. There are limited exceptions which may apply if you do not qualify under the general rule.

CHRONOLOGY OF DIVORCE PROCEEDINGS
A divorce case begins by filing a Complaint in Circuit Court. Alabama law requires that the Plaintiff must serve the Defendant with the Complaint so he or she has adequate official notice. Service can be obtained a number of ways: certified mail, acceptance at the court clerk's office or attorney's office, or delivery by a deputy sheriff. The most common method of service in our office is for a private process server to present the Complaint to the Defendant at work or at home. After the Complaint has been filed and served, the Defendant has thirty days in which to respond to the Complaint by filing an "Answer" with the court. The Answer may include a Cross-Complaint for divorce. Once your spouse files an Answer, the court may set the case for trial, usually within several months. Since each individual case varies, this period can be longer -- especially in the event of a complex estate, or disagreement over custody or support. Frequently, cases are postponed from this original hearing date to a subsequent date (usually months later) owing to conflicts in the schedule of the court or one of the parties. Prior to the hearing date, our firm will try to negotiate a settlement on your behalf, conduct discovery by filing certain questions and asking for certain documents from the other party, and handle any preliminary matters on your behalf. After the hearing, or a negotiated settlement, the final decree will be signed by the judge, normally within several weeks. As of the date of the judge's signature on your decree, you will then be divorced.

UNCONTESTED DIVORCE
Many of the matters incidental to a divorce may be promptly resolved if they are agreed upon or "settled" between the parties outside of court. The matters that the parties agree upon is presented to the court in a document called "Agreement of the Parties," which may deal with property division, support, custody and visitation, insurance, and many other subjects. Though the parties have great flexibility, they may agree to arrangements to certain matters such as equal time-sharing of children, which the court is not likely to grant. If the court accepts the agreement, it will adopt it as part of the Final Divorce Decree, which gives your agreement the binding strength of a court order, enforceable by contempt proceedings (see page 5). Disputes over custody, support, property division, or visitation will prohibit an uncontested divorce as discussed above. A divorce is not considered "uncontested" if the agreement of the parties is reached only after substantial attorney time and negotiation.

DUAL REPRESENTATION
Our firm can represent only one party in a divorce action, even in the case of an uncontested divorce. Though it might appear economical, we cannot ethically represent both the husband and the wife in a divorce or post-divorce matter. However, we often handle cases where no other attorney is involved, with a clear understanding of which party we represent.

SPECIFICS OF DIVORCE NEGOTIATION

Property Division: After a full hearing, a court determines what a fair division would be in view of the particular facts and circumstances of the case. There is no specific formula for the division of marital property in Alabama. However, a court will consider the liabilities, as well as assets, of the parties. Other relevant factors include: the amount and nature of the property owned by the parties, the length of their marriage, and the economic circumstances of each spouse. In some cases the court will consider the "fault" or misconduct of one, or both of, the parties which contributed to the breakdown of the marriage.

If you and your spouse agree on a property division, then this may be incorporated into an Agreement of the Parties for presentation to the court for approval. If you cannot agree, the court will divide the property.

Alimony: Alimony is available to either spouse in Alabama. The court looks at certain circumstances before making an award of alimony. Some of those circumstances include the length of the marriage, the ages of the parties, the fault of either spouse in bringing about the dissolution of the marriage, the educational background, work experience, physical health, and relative financial circumstances of the parties. There is no set formula for calculating the amount of alimony to be awarded. It can be an agreed-upon amount, a sum set by the court or it may be waived by the parties altogether. It is also possible for the issue of alimony to be reserved for a future order of the court. However, if alimony is waived, and there is no reservation of alimony in the divorce decree, the court cannot award it at a later date.

Child Support: The adoption of the child support guidelines in 1993 significantly altered the method by which child support obligations are determined. The guidelines assume that both parents should continue sharing the financial obligations of the child(ren) despite the divorce. With a few exceptions, the support amount calculated by applying the guidelines constitutes a rebuttable presumption of accuracy. This means that the amount determined by using the guidelines is assumed to be the correct child support obligation unless one of the parties argues that an exception to the guidelines applies. Basically, we will need the monthly gross income of you and your spouse, health insurance cost(s) and child care expenses in order to calculate an estimate of what child support would likely be in your case. If the combined gross monthly income of you and your spouse exceeds $10,000, the guidelines do not apply; the appropriate amount of child support is then within the discretion of the judge based on various factors including the expenses and needs of the child(ren). 

Child Custody and Visitation Rights: Despite the fact that the husband and wife have equal standing before the court, the wife is generally named custodian of the minor children. However, we do not hesitate to vigorously represent our clients, whether mothers or fathers, who seek custody of their children.

Of course, the non-custodial spouse ordinarily has reasonable rights of visitation. If the parties can agree to the details of visitation, the court will usually approve the plan. If the court is required to determine specific visitation rights, the court will generally adhere to the standard visitation arrangement for Jefferson County (see Standard Visitation Schedule below). Special visitation rights may be awarded to out-of-state parents (see Out-of-State Standard Visitation Schedule below). For children under three years of age, the rights of visitation are more restricted.

Joint custody is appropriate in certain instances, and can gain the approval of the court when agreed upon by the parties. An order for joint custody means that the parties will continue to share the legal rights and responsibilities attendant to being a parent, just as they do during the course of an ongoing marriage. The parties will agree upon a plan for sharing the child's time; often this means establishing a primary residence for the child, and working out a feasible time-sharing arrangement. The judges prefer that the parties work out the details so that it is clear which parent has primary responsibility for certain aspects of the child's care. Each joint custody arrangement is subject to the court's approval. Child support and other support related issues such as the provision of medical insurance for a child may be agreed upon between the parties. No matter what the custodial arrangement, each parent has equal access to school and medical records. 

Child support and visitation rights are “not interrelated” under Alabama law. This means the custodial parent may not legally withhold visitation from the parent who does not pay child support as required. It is the child's right to see his or her parent, and it is the responsibility of the custodial parent to ensure that, absent extraordinary circumstances, a child goes for visitation, even over the child's objection.

Sexual Relations/Dating: Once we have filed an action for legal separation or divorce on your behalf, you and your spouse should no longer engage in sexual intercourse with one another. The court may consider such sexual activity a reconciliation and dismiss your case. That would require you to incur the expense of beginning the case again and the loss of your position on the court's trial docket. However, you may continue to live under the same roof pending the Final Decree.

You are still married until the judge grants a divorce. Do not date or have sexual relations with others during the divorce proceedings; doing so may be to the detriment of your case.

Reconciliation: Sometimes divorce seems the only solution. Then, after a divorce action is commenced, you may change your mind and try to work things out. We are always pleased to hear any good news of reconciliation. In the event that you decide at any time to withdraw from any litigation which is before the court, or in the process of being prepared, please notify us at once so that we may take adequate steps to halt the process. If you decide to drop the divorce action, you will owe the portion of your retainer expended for those services already performed, and for any costs advanced on your behalf.

Changing the Wife's Name: The wife may legally change her name through the divorce proceeding, or at a later time through Probate Court, to resume the use of her maiden name or name by a previous marriage. The children will generally retain the name of their father.

Legal Separation: The grounds for a legal separation are the same as those for divorce and the procedures for obtaining each are similar. In some instances a legal separation is sought by a couple with marital problems who wish, because of religious convictions or in order to retain health insurance or military benefits, to live apart without divorcing. A legal separation does not automatically become a divorce after a certain number of months or years, but after two years it may be grounds for divorce.

Remarriage: Although a divorce is final on the day the judge signs the Decree, you are not free to marry another person in Alabama for another sixty (60) days. However, the parties themselves can remarry one another. If an appeal is taken, the parties cannot remarry until the appeal has been resolved.

TEMPORARY RELIEF

After a divorce Complaint is filed it is possible to obtain temporary relief from the court. If your spouse is physically abusive to you or to the children, refuses to provide reasonable support, or threatens to destroy or dispose of property belonging to the parties, the court will hear your evidence and determine if relief is appropriate. If you think you will need such special relief, please tell your lawyer immediately.

RESPONSIBILITIES OF ATTORNEY AND CLIENT

All communications with our firm regarding your case are strictly confidential. We will preserve your confidential communications and prosecute your case to the best of our professional ability. The facts of your case will be the chief determination. Therefore, we must have all the facts to represent you properly. The outcome of your case is within the sole discretion of the court, subject to appeal if necessary.

We will make every effort to keep you informed. You will receive copies of all documents prepared or received by us. Though there may be periods when you do not hear from us, we will be monitoring and working on your case preparation consistently until it is completely resolved.

After you have deposited an amount of money with us as a retainer and executed an Engagement Letter, you have established an attorney-client relationship with us. Once this relationship exists, you will be asked not to relay specific settlement proposals to your spouse. This creates ethical difficulties for the lawyer under the Code of Professional Responsibility because it involves bypassing the other party's lawyer. For the same reason you cannot expect us to talk directly to your spouse if the spouse is represented by an attorney. 

We will be available to you to discuss the legal aspects of daily issues, but remember our fees are based in part on time spent on a case, including telephone conversations. When court appearances are scheduled, it will be your responsibility to be present on time at the designated courtroom in the County Courthouse. If witnesses are required to be present on your behalf, we will need your assistance in selecting them and preparing them for an appearance in court.

You will have to produce records of your total income, whether from wages, fees or investments, and all of your assets, and furnish a complete list of all debts and liabilities, including amounts required to meet all installment payments. Keep complete notes regarding all living expenses for yourself and for any children or other dependents. 

CONTACTING THE LAW FIRM

Generally, lawyers are in our offices on weekdays from 8:30 a.m. until 5:00 p.m. (telephone 874-8680). Because of the nature of our practice, we are frequently engaged in court hearings. However, an Associate Attorney or Legal Assistant will be familiar with your case, and she/he will be familiar with its status at all times. If you are unable to reach your lawyer, please ask to speak with the Legal Assistant who has been working on your case. If she/he cannot help you, she will discuss your concerns with your attorney and one of us will return your call.

LEGAL FEES AND COSTS

You will be responsible for the payment of court costs and other expenses necessary to your case, and these costs will go directly to the court and other suppliers of non-attorney services such as the Sheriff's Department or court reporters. In our area the minimum cost (exclusive of attorney's fees) in an uncontested case usually consists of the filing fee. In a contested case, expenses may be incurred for depositions and the expertise of other professionals such as physicians, psychologists and accountants whose testimony or assistance may be required for the preparation of your case. Our charges will not be based solely on the number of hours expended, but upon a combination of factors including the expertise of the lawyer handling this matter, income tax planning, analysis and advice, amount and character of services rendered, the labor and difficulty involved, the character and importance of the litigation, the amount of money and value of the estate affected, the professional skill and experience called for and the results obtained, without specific allocation. The financial terms of our representation are set out fully in your engagement letter. We analyze each bill before it goes out and make an effort to keep the cost of our services as low as possible.

ENFORCEMENT OF DIVORCE

The terms of a Divorce Decree are enforceable by the court against either party who fails to comply with them. Should you need advice or assistance enforcing you decree, you may at that time retain our services for this matter as set out above. The most common proceeding begins with the filing of a sworn complaint called a Petition for Rule Nisi. This petition requests a "show cause" hearing in which your former spouse will be required to appear in court and show why he or she has failed to abide by the Divorce Decree. Normally, a hearing is scheduled for approximately sixty (60) days after the filing of the Petition for Rule Nisi. At the hearing, the Judge hears testimony and determines whether either party is in contempt of court for failure to abide by the terms of the Decree. In the event that a party is found to be in contempt, the judge has the power to place that person in jail until he or she complies, and to enter other appropriate orders. Other methods of enforcing obligations due under Decrees of Divorce include Garnishment, Levy and Attachment, and Continuing Wage Withholding Orders.

MODIFICATION OF DIVORCE DECREE

Certain terms of your Decree of Divorce are subject to modification when you can establish a material change of circumstances. These terms include permanent alimony and all matters concerning child support, custody and visitation until the child reaches age nineteen. As a general rule, property settlement terms are not subject to modification.

ANNULMENT

The annulment of a marriage is a cancellation of that marriage from the beginning, as if it never existed. Annulments are rarely granted in Alabama, possibly because divorces are usually easily obtained, but there are certain circumstances where an annulment is appropriate. Some of the grounds for annulment are inability of either party to enter into a marriage because of a pre-existing marriage, mental or physical incapacity to enter into marriage by either party, marriage procured by fraud and marriage under duress or threats. All complaints for Annulment are examined closely by the judges in our Domestic Relations Court and the Petitioner will be required to appear in person to testify before the judge.

CONCLUSION

Domestic litigation is a part of American life and almost everyone has been directly or indirectly involved in domestic proceedings. As a result, your well-meaning friends and associates may offer you advice and a great deal of folk wisdom concerning your case. Frequently such advice is not accurate and you should be very cautious in following it. The facts surrounding your marriage, divorce, children and property are unique and they differ from every other case. This information is designed to be the most honest and readily understandable statement of the realities of divorce practice that our firm could produce in the form of a brief handout. It is also designed to refresh your memory about subjects we have discussed with you, and we hope it will make you less vulnerable to misinformation and uncertainty. We have not intended this to be a survey of the law, and due to the importance of the individual facts in all cases, the generalizations in this information should not necessarily be applied to any one particular case. Continuing changes in the law could make parts of this information obsolete, but you may be assured that we are particularly conscious of the changing law and well-equipped to stay abreast of the latest developments, both in Alabama and nationally.

DISCLAIMER

Alabama State Bar regulations require the following on all attorney ads: "No representation is made about the quality of legal services to be performed or the expertise of the lawyer performing such service." © Copyright 2004, The Crittenden Firm, P.C.