Frequently Asked Questions
How long do I have to live in Alabama before I can file for divorce?
Alabama law requires that you reside in the State for at least 6 months before you can file for divorce.
What if my spouse does not live in Alabama?
You can still file in Alabama, as long as you have lived here for at least 6 months. If your spouse lives in another state, the process may take longer and may be more complicated.
What kind of complications?
Your spouse will have to be served with the Complaint for Divorce, whether he or she lives in Alabama or not. Service upon a party who lives out of state may require hiring a special process server to take the Complaint to your spouse, or, under certain circumstances, by sending the Complaint via certified mail to your spouse's home. If you do not know your spouse's address, you may be able to effect service by publishing notice of the divorce in a newspaper approved by the Court.
How long will it take to get divorced?
At a minimum, Alabama law has a 30 day waiting period before a divorce can be granted. In reality, even if you and your spouse agree on everything, it may take more than 30 days to finalize your divorce and for the judge to sign your divorce decree. If you and your spouse do not agree on the terms of your divorce, be prepared for the process to take up to (and in some cases more than) a year to complete. Extremely complex cases may take several years to resolve.
What costs are involved in filing for divorce?
The fee to file a Complaint for Divorce varies by county in Alabama. Moreover, Filing Fees often change in some counties annually. Your attorney will be able to tell you what the filing fees will be. If you hire a special process server or attempt to serve your spouse by certified mail, there will be additional up front costs. Also, if you retain counsel, there will be lawyer's fees.
Can the Court make my spouse pay for my lawyer?
Alabama law allows a Court, in its discretion, to award an attorney fee in a divorce case, but there is no guarantee that the Court will make an award.
Can one lawyer represent both my spouse and me?
No. A lawyer can only represent one party to a divorce. In an "uncontested" divorce, one lawyer may prepare all the paperwork necessary to finalize the divorce, but that lawyer only represents the plaintiff (the party filing the Complaint for Divorce). The other party (defendant) will have to sign an acknowledgement that the lawyer represents only the plaintiff and that he or she understands the right to have an attorney represent his or her interests in the divorce.
Are Experts used in every case?
Not necessarily. However, many cases require the assistance of special process servers, licensed private investigators, child psychologists, and accounting and valuation experts. The need for experts in a case are largely determined by the facts of the case and your attorney’ decision that they are necessary to successfully pursuing your interests in a case.
What happens when a custody or visitation order is violated?
The consequences for violating child custody and visitation orders almost always correlate to the magnitude of the violation. For instance, if a parent is a few minutes late in arriving to pick up a child at the time for exchange, even though it may happen repeatedly, it is likely there will be little or no consequences for this minimal violation. For the most part, a few minutes difference in arrival time will not endanger the children in any way. On the other end of the spectrum, of course, is the situation in which a parent fails to return the children at the designated time and disappears with them with no trace for days, months and sometimes even years.
At the lower end of the spectrum of violations, most states do not provide much assistance to parties trying to force compliance with a court order. Often a parent, frustrated by such behavior from the other parent, may merely have to have ready a 'plan B' that insures the safety of the children while allowing the parent to minimize the inconvenience of the repeated tardiness or other minor violations.
At the upper end of the spectrum, depending on how long the children are gone and whether the parent has crossed state lines, and at even the middle of the spectrum, the full force of both state and federal law enforcement is enlisted to protect children and penalize offenders. It should be noted that the violation must demonstrate a criminal intent to withhold or conceal the child from a party with the right of custody before law enforcement considers a crime to have been committed.
All states have procedures for seeking enforcement of a court order through contempt proceedings. These procedures generally require the assistance of an attorney. Most courts look very unfavorably upon violations of its orders, typically providing a remedy for the other parent. Courts have been known to alter a custody or visitation schedule completely in response to a parent's significant or repeated violation of their order.
Who will win custody of the children?
The fact is that in 90% of cases in the United States where parents have decided they will not parent together, the parents are able to come to an agreement regarding child custody and visitation arrangements. However, the remaining 10% of cases where a court is involved can be devastating for parents, children, the extended families, and even for professionals involved in their cases.
Because of the high potential that a custody battle can have long-lasting negative impact on children, most states have instituted as many safeguards against that possibility as possible. In general, all child custody decisions are to be based on "the best interests of the children." In many states, even in those cases where the parties have signed an agreement regarding custody and visitation, they are asked during the final proceedings whether they believe the custody and visitation arrangements are in the best interests of their children. Safeguards in place include:
• In many states, parents with a child custody dispute are required to attempt mediation of the custody issue before a contested custody case may go further
• In some states, in any contested custody matter, the court must appoint a guardian ad litem, an attorney whose role is to represent the best interests of the child during the course of litigation
• Sometimes the courts order "custody evaluations" which are investigations and reports from impartial professionals with specific training for the task, usually social workers or mental health professionals
• In some states, depending on the age of the children, courts allow children to have some input into their custody decisions
• All states have a long list of statutory factors that the court must take into account prior to making such determination
How is property divided?
All states provide for a more-or-less equitable, but not necessarily equal, division of marital property. Marital property includes the parties' incomes, acquired during the course of the marriage. Those states with community property laws set forth in more specific detail precisely what property is considered community property and thus, available for division, and, what property is considered separate property and thus, not available for division. Once community property is identifies, some community property states mandate an equal division of the property. Others apply the same principles as those states that use the equitable division of property model.
If the parties are able to come to a mutual agreement, the decision of who gets what property in either type of state is, of course, up to the parties, but usually with approval by the court. Despite lore to the contrary, most divorcing couples are able to negotiate a fair and equitable division of the property without resort to a court's decision-making process. However, for those unable to come up with a mutually agreed upon division of property, most state law provides a list of factors that courts consider in making a final. Generally among these factors are:
• Length of the marriage
• Age and health of the spouses
• Contribution of each spouse to the acquisition of property
• Contribution of one spouse to the education or training of the other
• Custodial provisions for children of the marriage
• Whether either of the spouses will be awarded spousal support
• Present and potential earning power of each spouse
• The total economic circumstances of the spouses
• The existence of any pre- or post-marital agreement between the spouses
What Role Does Domestic Violence Play in Divorce?
As with so many issues involved in divorce cases, domestic violence may or may not play a significant role in the legal process depending upon the exact circumstances. Of course, in cases in which criminal law has been invoked because of the level of domestic violence, it will likely play a significant role in the divorce case. This is especially true in cases involving child custody and visitation determinations. However, if the parties don't have children and the domestic abuse has been relatively minor, even if law enforcement has been involved, the domestic violence of one party against the other may play a miniscule legal role.
On the other hand, because the very definition of domestic violence implies an on-going pattern of control of one party by the other, using not only physically, but also psychologically and emotionally abusive methods, domestic violence may play a very significant role in the emotional and psychological aspects of divorce. This can be especially true in the original decision-making process of whether or not to initiate a divorce. Many victims of domestic violence leave a marriage because of the abuse, and many victims of domestic violence stay in the marriage because of the abuse, knowing that an attempt at separation might result in an escalation of all aspects of the violence.
What is collaborative law?
Collaborative law is an alternative dispute resolution process gaining popularity in a number of states. In the collaborative law process parties to a divorce, and their attorneys, commit to an honest, open, cooperative resolution of all issues without going to court. In fact, the defining feature of collaborative law is that both parties and both attorneys agree in writing that they will not go to court. Instead, they will provide open, informal, expedited discovery of all relevant facts and documents; they will participate in meetings and commit to bona fide negotiations. Some even agree to the use of a divorce coach or other professionals, such as financial consultants and child specialists, to help them make decisions that result in the best outcome for both parties and their children. If either party or their attorney decides that the case should go to court, the attorneys are both required to withdraw from the case and any disclosures to that point cannot be used in the court case without permission from both parties.
The vast majority of collaborative cases do settle without court intervention. Advocates of the process claim that most parties save significant amounts of money and time through the collaborative divorce process. The atmosphere of cooperation rather than competition sets the stage for future dispute resolution without court involvement, and allows for relationships that are more amicable for the parties.
JORDAN & GREER, LLC
2319 MARKET PLACE, STE. C
HUNTSVILLE, AL 35801
(256) 489-8930