Legal Aspects of Divorce
Divorce is an increasingly common occurrence in our society. Yet its effect on the parties, their property and children can often be devastating. Once entered, the provisions of a Divorce Decree can establish the parties' rights permanently. If you have decided to obtain a divorce, you should consult your personal attorney to assist you in handling the legal aspects of this court proceeding. Few lawyers consider themselves marriage counselors, but they are concerned for your well-being and how a divorce action affects you. This pamphlet is an attempt, in a general way, to present you with the board 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
difficult to convince the court that incompatibility exists
sufficient to dissolve the marriage relationship. 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
a very 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, imprisonment in the
penitentiary for certain prolonged periods, addiction to
alcohol or drugs, Mental incapacity, cruelty, or conditions
which existed at the time of the marriage without the
knowledge of the other party such as pregnancy and incurable
physical problems which keep one spouse from entering into
the normal marriage state.
Divorce by Default or Trial
Two common methods of obtaining a divorce are by default or by trial. A default divorce occurs when the party against whom the divorce suit is brought fails to respond within the time limits set by law. If the defendant does appear and files a response to the complaint, the case will be set for a trial. In this set of circumstances, 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 Judge will decide all of these issues and will make the final decision concerning the divorce. The difference is that if there is a default, the Judge will base his ruling on the oral or written testimony of only the party who filed the suit.
The most common type divorce today is one in which the divorce is not contested. This means that the parties, both husband and wife, agree to get a divorce. In such a divorce, the parties usually enter into a written marital agreement defining their rights and duties and other issues of the divorce.
This agreement should spell out all of the terms of the divorce, specifically including all matters relating to the children and all property owned by the parties. It is presented to the Judge, and if he approves it, a divorce is granted and the marital agreement is made a part of the divorce decree. By making this agreement, the necessity of a trial is avoided.
Child Custody and Visitation Rights
In a divorce action, the court determines the custody 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 custody agreements between the parties.
The custody of the children is very important, and you should give your attorney any information that might affect which party receives custody of the children. The courts favor a natural parent having 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 custody of the children has the right to visit the children or have them visit him or her. Generally, visitation rights are set by the Judge and are generally expressed in terms of reasonable 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, et cetera. The court may also, on request, award visitation rights to the grandparents of the children.
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 parent 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 specifically 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 marriage 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 property in order to "do equity" between the parties. The court has 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 necessarily bound by an agreement for division, such property settlements are looked upon with favor. If no agreement is remitted, the court will make the division based on the needs and interests of the parties as shown through testimony at trial.
The division of property between the husband and wife and awarding of alimony and child support payments often result in adverse and unexpected tax consequences that my 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:
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. Non-contested 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, et cetera.
It should be noted that an attorney cannot ethically 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 is based historically on the common-law 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: temporary and permanent. Temporary alimony is awarded 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 completely discretionary with the court which considers such factors as the length of the marriage and the age, earning capacity, health, conduct, education, and income of each of the parties. There is no set mathematical formula in setting the amount. Alimony is separate and apart from any property division between the parties. However, as a practical matter, there is often a relationship between the two issues, since some of the same factors are used as guides to property settlements.
NOTE: This material, 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:
The Alabama State Bar
415 Dexter Avenue Montgomery, Alabama 36104
Attorney Ken Scheinert provides legal services to clients in Marshall County, DeKalb County, and Jackson County, Alabama, including the communities of Albertville, Arab, Asbury, Boaz, Crossville, Douglas, Grant, Union Grove, Pleasant Grove, Scottsboro, and Ft. Payne.