Requirements and Interpretations for the State of Alabama
(Note: Please remember, these are only interpretative reviews by the Children’s Rights Counsel and are not intended to provide legal advice specific to your circumstance. More about this here.)
A. Kinds of Divorce
1. No Fault
A “No-fault” divorce is an irretrievable breakdown of the marriage. It is most often associated with an incompatibility of temperament such that the parties can no longer live together and any further attempts at reconciliation are impractical or futile, and not in the best interests of the parties. No-fault divorce has the advantage of sparing the spouses the acrimony of the 'fault' processes, and the disadvantage of closing the eyes of the court to any and all improper spousal behavior. This means that the “fault” of one of the parties in destroying the marriage is not an issue in the divorce. An “uncontested divorce” is simply a no-fault dissolution where the spouses agree on the terms of the divorce (child custody, property division, etc.). If the parties agree to "no-fault" grounds but cannot agree on terms, the divorce is considered "contested".
2. General
In the instance a spouse makes a claim for a breakdown of the marriage against the other, a "ground" or reason is necessary for the divorce. To justify a cause for divorce, a person must demonstrate one or more conditions exist from the following set of recognized judicial reasons, before the State of Alabama may grant a decree of divorce. [Code of Alabama; Title 30, Chapters 2-1 and 2-2].
? Adultery;
? Living separate and apart, without cohabitation for over two (2) years prior to filing of divorce without the benefit of support from husband, and wife is a bona fide resident of Alabama (Applicable to wife);
? Imprisonment, if for over two (2) years of a total sentence not less than seven (7) years;
? Commission of crimes against nature, or other unnatural sexual behavior, before or after the marriage;
? Drug and/or alcohol addiction;
? Insanity, confinement to a mental institution for a period of not less than five (5) successive years, and a qualified determination there is no hope of recovery;
? Pregnancy, wife pregnant by another at the time of the marriage without the husband's knowledge; (Applicable to husband)
? Commission of violence upon a spouse (physical abuse) or reasonable apprehension of such violence;
? Physical and incurable incapacitation by either party to consummate marriage at the time of contract;
? Voluntary abandonment by either spouse for a continuous period of separation not less than one (1) year prior to filing of the complaint.
A divorce "from bed and board" may be granted for cruelty or for any of the above same causes for which a general divorce may be granted if the spouse filing the complaint desires that the divorce be limited to a divorce "from bed and board." [Code of Alabama: Title 30, Chapter 2-30].
3. Summary Divorce
There is no legal provision in Alabama for a summary divorce; generally applicable to divorcing couples who generally have no children and minimal property, assets and debts. Additionally, specific evidence must be presented at a court hearing to support a default judgment for a divorce case under Alabama civil procedures.
Whether a divorce for cause or no-fault, the judge decides all issues on which the parties cannot agree. Normally the judge will also approve agreements between the parties to make sure they are not fundamentally unfair to one party.
B. Residency & Venue Requirements
1. Plaintiff Resident
At least one spouse (Plaintiff) must be a resident of Alabama for not less than six (6) months prior to filing for a divorce within the Alabama Circuit Court system. If both spouses are residents of Alabama, the divorce may be filed in either the county where the spouses both resided at the time of their separation; or the county where the Defendant resides.
2. Non-Resident Spouse
When the Defendant is a not a resident of Alabama, the Plaintiff (the person who files for divorce) must have been a bona fide resident of Alabama prior to filing the divorce action in the county where the Plaintiff currently resides. This residency requirement must be alleged in the Complaint for Divorce and proven by the Plaintiff. [Code of Alabama; Title 30, Chapters 2-4 and 2-5].
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Venue
"Venue" refers to which type of court and in what locality the case is filed. In Alabama, proper venue for a divorce action is the Circuit Court of the county in which the defendant resides, or in the Circuit Court of the county in which the parties resided when the separation occurred. [Code of Alabama; Title 30, Chapter 2-1]
C. Terms & Process
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Plaintiff:
The spouse who files the summons and complaint of action for divorce with the Circuit Court of the county.
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Defendant:
The responding spouse who is party to the action for divorce.
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Divorce Process:
The legal process of obtaining a divorce begins by filing a complaint or summons with the appropriate Circuit Court of the county of residency. The document initiating the action for divorce is the “Complaint for Divorce”. The title of the action granting the divorce is referred to as the "Judgment of Divorce”.
4. Waiting Period
Alabama law requires a thirty (30) day waiting period from the filing of the summons and complaint before the Court may issue a final judgment of divorce.
5. Mediation or Counseling Requirements
While the court generally looks favorably upon voluntary measures such as mediation, counseling, parenting education, and other alternative dispute resolution techniques; there is no legal provision in Alabama that require either party to engage in such services prior to filing a complaint or receiving a judgment of divorce.
6. Waiver of Service
An acceptance and waiver of service is allowed if signed by the defendant and a credible witness. Testimony in uncontested divorces may be taken before a court clerk, by sworn statements, or by transcripts of oral depositions. A standardized Child Support Guidelines form and Child Support Income Statement/Affidavit must be filed in every case in which child support is requested. [Code of Alabama: Title 30, Chapter 2-8.1; Alabama Rules of Civil Procedure; Rules 4, 43(a), 53, and 55 and Alabama Rules of Judicial Administration: Rule 32].
D. Legal Separation & Remarriage
1. Conditions
Legal separation is a court determination of each spouse’s rights and responsibilities based on the circumstances of the marital relationship. While a legal separation often includes a physical separation of households, it is not required; nor does it terminate the marital relationship.
2. Judgment of Separation
Alabama law provides that a person may file for legal separation from their spouse if it is demonstrated to the court that:
? That the bonds of matrimony have been irretrievably broken;
? There exists an incompatibility of temperament between the parties, or
? One or both of the parties desire to live separate and apart from the other spouse. In addition, if there are children of the marriage, the court must consider, approve or provide for child custody and enter an order for child support.
To obtain a judgment of legal separation, the parties must meet the same jurisdictional requirements as required by an action for divorce.
3. Separation Agreement
A separation agreement, often referred to as a Pendente Lite Order, is a formal agreement between spouses. It provides for support and other financial conditions until a Judgment of Divorce is made by the Court. Filing a separation agreement is not a requirement for obtaining a divorce, but serves as a concise agreement to facilitate cooperation between spouses. This can be especially helpful if the divorce decision is expected to take a longer period to accomplish for any variety of reasons. As with any document pertaining to the dissolution of marriage, it is important to file a separation agreement with the Clerk of the Court for signature by the judge to ensure the terms are binding. Considerations important to address in a separation agreement include:
? Child Support: Payment amounts, how often and in what way (payroll deduction, child support office auto deposit, personal cheque, etc.)
? Access Schedule: Days, times, length and transfer location.
? Spousal maintenance (alimony): Payment amounts, frequency, etc. (if any).
? Residence: Which parent will remain, monthly upkeep expenses, sale/division of proceeds and property, etc.
? Household Bills: Which bills and responsibility for payment(s).
? Taxes: IRS filing status, deductions for child(ren), mortgage interest, joint refunds, property tax liability, etc.
4. Reconciliation
In the instance of reconciliation between spouses, a legal separation may be revoked at any time by agreement of the parties. However, an agreed order of revocation must be signed by the judge. Once a legal separation has been revoked by the court, the parties would have to repeat the entire process if it was decided to legally separate again.
5. Remarriage
Remarriage by the parties to another person is forbidden under Alabama law until after sixty (60) days have elapsed following entry of the Judgment for Divorce. In the event an appeal of the Judgment of Divorce is filed, neither spouse may remarry (except to each other) pending resolution of the appeal. There is no set timeframe by which an appeal must be
6. Last Name
Under general common law principles, an ex-wife may resume the use of her maiden or former name upon divorce; and may be prevented from using the last name of the ex-husband. [Code of Alabama: Title 30, Chapter 2-11].
E. Child Custody and Access (Visitation)
1. State Policy
Alabama officially favors joint custody (but not equal physical custody) and makes it a policy of the 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. [Code of Alabama: Title 30, Chapter 2-11]. (Acts 1996, No. 96-520, p. 666, §1.)
2. Types of Custody
The court may award either "sole legal custody" or "joint physical custody" if it is in the best interest of the child. When the divorce is finalized both physical (residential) and legal custody will be determine
? "Sole legal custody" means one parent makes all the key decisions such as health, education, general welfare and religion affecting the child(ren), and it means that the child(ren) only live with one parent. This parent awarded custody is referred to as the “custodian” and the other is considered the “non-custodial” parent.
? "Joint physical custody", often referred to as shared parenting means parents share equal legal custody but not necessarily equal physical custody of the child(ren). Both have an equal right and responsibility to make important decisions regarding issues of health, education, general welfare and religion affecting the child(ren). This arrangement does not always work out to be an exact 50/50 split, and takes good cooperation from both parents.
3. Considerations for Custody Award
Under Alabama law, custody of any child(ren) of the marriage may be granted jointly or to either parent by court decision (order). Because joint custody is presumed to be in the best interests of the child(ren) in Alabama, the judge shall consider joint custody in every case. If both parents request it, joint custody shall be ordered unless the Court makes a specific finding as to why it should not be so ordered. To make this determination, the Court exercises certain deliberations to award custody, generally based upon those factors considered to be in the best interest and welfare of the child(ren). There are however some exceptions . One of which is a legal presumption against giving custody to any person who has inflicted any violence against either a spouse or a child. In abuse cases, the judge is required to consider any history of domestic abuse and may not consider the fact that a parent or spouse has relocated to avoid abuse. Another may presume custody for the father (if he is suitable) in the event a wife/mother abandons the husband and the children are over 7 years old. In some instances, custody may be awarded to grandparents in lieu of one or both parents. [Code of Alabama: Title 30, Chapters 3-1 to 3-200; and Alabama Case Law].
No matter how strongly a parent believes they are the better parent and should have custody of the child(ren), the court may decide otherwise. Each parent should be ready to accept the courts decision and move forward to work with their ex-spouse to raise the child(ren) in a way that is best for them. In making a decision for custody, the court will further consider:
? Safety and well-being of the child;
? Age and gender of each child;
? Parental cooperation and agreements established in proposed parenting plans;
? Capacity and interest of each parent to provide for the emotional, social, moral, material and educational needs of the children;
? Characteristics of each parent seeking custody, including age, character, stability, mental and physical health;
? Interpersonal relationship between each child and each parent;
? Preference of each child, if the child is of sufficient age and maturity;
? Respective home environments and geographic proximity of parents;
? Reports and recommendations of any expert witnesses or other independent investigator; and
? Effect on the child(ren) of disrupting or continuing an existing custodial status;
? Any other relevant matter the evidence may disclose and other reasonable available alternatives.
4. Parental Access (Visitation)
Where “custody" refers to which parent will have legal custody of the child(ren), i.e. with whom the child(ren) will live. Access (visitation) addresses the non-custodial parent's rights (when, where, how long, etc.) to spend time with the child(ren). And as in determining custody, judges have broad latitude in providing for access rights as well. The Court also has discretion to provide for access rights, even if both parents had previously agreed to no visitation. It is within the Court’s discretion to determine whether the parents will follow a specific schedule or allow more general conditions for access outside of direct court intervention programs. Parental cooperation and written parenting agreements are very helpful in guiding the Court in making such decisions. When parents cannot agree on child custody and access issues, the Court may order them to participate in programs offered by the Children’s Rights Council and/or other providers. These programs, such as SPEAK and Safe Haven or Gift Exchange access centers help them better cooperate and increase parental awareness of the affect negative behaviors may have on their child(ren).
5. Grandparent and “Other” Access (Visitation)
In the State of Alabama, grandparents may petition for access and be awarded visitation privileges as long as the Court considers such access within the best interests of the child(ren) and one of the following conditions exist:
? If one or both parents of the child are no longer living.
? If the marriage of the parents of the child has been legally dissolved.
? If a parent of the child(ren) has abandoned the minor(s).
? If the child(ren) was born out of wedlock.
? If the child is living with both biological parents, who are still married to each other whether or not there is a broken relationship between either or both parents of the minor and the grandparent and either or both parents have used their parental authority to prohibit a relationship between the child and the grandparent. [Code of Alabama: Title 30, Chapters 3-1 to 3-200; and Alabama Case Law].
6. Shared Parenting Agreement
The purpose of a shared parenting agreement is to reach an understanding on how to jointly raise and care for the child(ren) with both parents sharing in the responsibilities and maintaining involvement in their day to day life. The agreements require a flexibility and dedication of both parents to act in the best interest of their child(ren). Make every attempt to encourage and respect the relationship of your child and the other parent. Don't assume anything and keep an open mind. It is important to remember that the parents are divorcing one another, not their child(ren). A shared parenting agreement fairly negotiated before a judgment of divorce has a far better likelihood of acceptance by the Court, and will help reduce the trauma to the child(ren) after a divorce is finalized. (Link to sample agreement format)
7. Court Order
After a decision of custody and access is made, an order is signed by the judge and filed with the Clerk of the Court. Both parents are bound by this order and may be found in contempt of the court for failing to honor any part. If in the instance a parent is denied court-ordered access to any child(ren), that parent may bring the issue back before the court by filing a “Petition for Modification.” If it is in the best interest of the child, the judge may decide to modify the access (visitation) order; order makeup visitation for the time missed; order counseling or mediation by one or both parents; or other remedy the court may determine best to ensure compliance. Additionally, if a parent should interfere with an orderly access schedule, the Court may by Alabama statute require the offending parent to post a performance bond to guarantee compliance with the Court’s orders.
8. Parental Relocation
Alabama is one of few states that have addressed the issue of parental relocation by creating a statute with the presumption that in most cases a distant relocation is not in the best interest of the child(ren). Under the law, a custodial parent who's contemplating moving out of the immediate area must give notice to the non-custodial parent. The non-custodial parent has the right to object to the move and request a hearing to consider the issue before the court.
F. Financial Child Support
1. Responsibility and Emancipation
Financial “child support” commonly refers to the money paid by the non-custodial parent to the custodial parent to assist in meeting the continuing needs of the child(ren). It is often the most contentious aspect of divorce and rarely considered equitable by one or both parents without first working hard to understand the nature, purpose and distribution of financial support. It is important to understand that divorce does not end the legal obligation for support. Although the bond of marriage (or other relationship) has been broken, each parent still retains a legal responsibility to provide adequate support for the child(ren). The paying (non-custodial) parent may not agree with how the funds are being used, but that isn't their decision to make. The use of child support funds is at the discretion of the custodial parent. Even if the custodial parent earns more than the non custodial parent, child support payments will likely have to be made until each child is emancipated. Emancipation means that the child has come of age and capable of self-support as determined under state law. In Alabama, that generally occurs when a child reaches 18 years of age or graduates from high school – whichever comes first. Additional circumstances which may consider a minor emancipated include military service or marriage. If determined in the best interest of the child, the Court may also make a judicial declaration of emancipation in certain instances if the minor is at least fourteen years old; the minor is living apart from the parents with their consent or acquiescence; the minor is able to manage their own finances and has a legal source of income. [Code of Alabama: Title 26, Chapters 13]
2. Needs and Considerations
The legal duties of financial child support are based upon the needs of the child in conjunction with the abilities of the parents as dictated by income and assets owned. The financial goal is to help families achieve self-sufficiency because non-payment of child support is a key factor contributing to the impoverishment of children. Each are an important part of a combined effort to obtain a fair distribution of financial responsibility so the child(ren) may live in a manner similar to that which existed before the divorce. While every situation is unique, the one common denominator all parents must remember is the Court’s direction to provide for "the best interests of the child." In deliberation of child support issues, the Court will consider many different variables including:
? Quality of lifestyle the child(ren) would have most likely experienced had the divorce not occurred;
? Financial resources of each parent and that of the child's;
? Age and health of each parent;
? Present and future income and earning capabilities of each parent;
? Willingness both parents demonstrate to allow visitation;
? Affect on the non-custodial parent to maintain two households.
? Child(ren)'s educational needs, including the potential for higher education;
? Age and health of the child;
? Possibility of the child obtaining employment;
? Tax liabilities of each parent;
? Desire on the part of each parent to have sole or joint custody;
3. Child Support Guidelines
In Alabama, child support is based on the combined net income of the parents and how many children the parents are responsible for supporting. In making a determination of child support, the Court may order either parent to provide for payment based on official Child Support Guidelines contained in the Alabama Rules of Judicial Administration: Rule 32. While every state has its own version of the Child Support Guidelines to help calculate an appropriate amount of support, only the individual set of guidelines adopted by the State of Alabama are presumed by the Court to be correct for use by the Alabama system of circuit courts.
4. Negotiating Financial Child Support
As in the issue of custody, the court will have the final say in all matters of child support. However child support, like many other elements in divorce, does not have to be decided only by the judge. In the event an amount may be demonstrated manifestly unjust or inequitable under Child Support Guidelines for the particular circumstances of a case, a written agreement between the parents for a different amount with a reasonable explanation for the deviation from the guidelines may be allowed.
The best measure to ensure the intentions of both parents are met, and guard against unexpected findings, is to mutually prepare a parenting agreement. It is each parent's responsibility to clearly explain any and all special conditions or unique circumstances to the Court. A written agreement between the parents for a different amount with a reasonable explanation for the deviation from the guidelines is not uncommon. And an agreement reached prior to trial is almost always a more successful one, because it is the parents who best understand the specific needs and capabilities of the family members, as well as, demonstrating a collaborative effort to ensure the best interests of their child(ren).
If parents ignore the opportunity to present a shared parenting agreement, or are unwilling to iron out a reasonable agreement (with or without the help of other professionals); the Court will typically refer to the standardized Alabama Child Support Guidelines to determine the amount of financial support. In all instances, the judge will make the final decision on child support, as well as custody. In this way, the Court assumes full responsibility for the order to permanently safeguard the best interests of the child(ren), and guard them against acute or chronic feelings of guilt.
5. Determination of Payment
Child support is one of the few things in divorce that is relatively certain. In making a determination of payment, the Court generally focuses on income after taxes, and support is rarely the sole responsibility of the non-custodial parent, because it is understood that the premiere job of the custodial parent is to provide a sufficient household. In all instances in which financial child support is requested, a standardized Child Support Guidelines form and Child Support Income Statement/Affidavit must be filed with the Court. For the majority of divorces involving minor children, financial child support is a straightforward application of a formula that is entirely a result of statute. (Refer to Alabama link). Alabama uses a relatively easy model called "Income Shares" to calculate child support based on the following factors:
? Combined gross income of the mother and the father;
? Each parent’s gross income as a percentage of the combined gross income;
? Any pre-existing obligation to pay child support or alimony;
? Number of children under 19;
? Amount paid for work-related child care, subject to some limitations provided by the state Department of Human Resources; and
? Ability of each parent to provide healthcare coverage for the child(ren) and amount paid for health insurance.
? If determined reasonable and prudent, the Court can also set aside a portion of joint or separate assets of the parties in a separate trust or fund for the support and education of the child(ren).
6. Modification of Child Support Payment
In Alabama, either parent may request a child support order to be recalculated at any time. However, an adjustment will generally only occur if the recalculation results in a net change of not less then ten percent (10%) in the net child support payment. This kind of modification usually follows a substantial change in circumstances, such as a significant increase or decrease in either parent’s income; a child reaching the legal age of majority; graduation from high school, or other major change to the familial status. Some of the factors generally considered for modification include:
? Parental incomes and earning capacities;
? Available assets for support;
? Employee benefits of each parent;
? Income of a new spouse or cohabitant;
? New family responsibilities of each parent;
? Increase in the cost of living;
? Special changes in cost of rearing the child(ren); and
? Heath conditions of parents and child(ren).
To initiate a modification of the child support order, the parent (or legal counsel for the parent) must file a Petition to Modify (along with the accompanying filing fees) with the Court. The petition must demonstrate evidence of the change in circumstances. Typically, the evidence must be completely new to the court. Issues addressed previously in the child support arrangements are not means for modification. [Code of Alabama: Title 30, Chapters 3-1 and 3-200 and Alabama Rules of Judicial Administration: Rules 32 and 35].
G. Spousal Support/Alimony
1. Obligation Under Law
It is an obligation established by law based on the premise that both spouses have an absolute obligation to support each other during the marriage (or civil union) unless they are legally separated. After a Complaint for Divorce is filed with the Court to terminate the marriage, either spouse may seek interim (pendente lite) support during the course of the divorce proceedings. When a divorce, or other dissolution of a civil union is granted, either spouse may then ask for post-marital maintenance (also known as alimony or spousal support). It is not an absolute right to receive this kind of monetary support, but may be granted depending on the amount and terms varying with the circumstances.
2. Definition and Intent
Spousal support (sometimes called spousal maintenance or alimony) is money paid by one spouse to the other due to the payee spouse's loss of the benefit of the payor spouse's income due to the divorce. It's designed to provide the lower-income spouse with money for living expenses over and above the money provided by child support in an effort to maintain the standard of living that both parties were accustomed to during the marriage. It can only be ordered by the court, but may be awarded to either spouse. But unlike child support, it is not determined by simple mathematical calculations in an official set of Child Support Guidelines. Instead, judges have enormous discretion when awarding spousal support, if they would at all. This of course, creates a great deal of uncertainty for litigation, encouraging each spouse to negotiate a fair agreement on their own behalf to settle their case instead of taking their chances with the Court. Unless reasons are compelling to the contrary, the Court is generally disposed to accepting an existing agreement between each spouse. However, if the parties cannot agree on the terms of their divorce in a binding written instrument, the Court will make what it considers a fair determination based on the legal argument and the testimony submitted by both parties.
3. Types of Spousal Support/Alimony
Spouse support may be awarded as a set lump sum (alimony in gross) or as periodic payments that terminate under certain circumstances.
? Lump Sum: This type of support is made in one payment instead of periodic (usually weekly or monthly) payments. Lump sum alimony is not modifiable in the amount after an award is made and paid. Lump sum alimony, just like all other form of spousal support is taxable as income. It is recommended that a person receiving or making a lump sum should first consult with an experienced tax professional to determine the tax liabilities of this type of payment.
? Permanent: This type of support is awarded until either the death of the payor or the remarriage of the recipient. Some agreements may include a "cohabitation" clause that states spousal support is terminated if the recipient cohabits with another person in the avoidance of marriage. Permanent alimony, as with the other periodic types of support may be modified by the Court if the party seeking the modification can show a material change in circumstances.
? Temporary: This type of support lasts for a short, specific period of time, usually not more than one (1) to two (2) years. Temporary support may be awarded when the persons involved are on almost equal ground but due to certain circumstances one person may need immediate financial assistance in order to restore their ability to set up a household and return to the workplace.
? Rehabilitative: This type of support is the most commonly awarded alimony, especially after shorter marriages. It is a solution the Court may apply in a situation where the recipient is usually younger or more easily able to enter or return to the workforce and become financially self supporting. Rehabilitative support may also include payments for education if determined necessary to enable the recipient to become self supporting.
4. Considerations for Award
The Court has full discretion to award an allowance for maintenance to either spouse, if the recipient spouse has insufficient resources to provide for their own maintenance. This award may be made out of the property belonging to the other spouse, unless it is separate property (acquired by gift or inheritance, or acquired prior to the marriage) and was never used for the common benefit of the marriage. Again, there is no formula for setting the amount of spousal support, and generally granted only on by a demonstration of need by one party together with the requisite ability to pay by the other. To make this determination, the judge will consider the following factors when deciding how much support to award – if it will be ordered at all.
? Relative Income of the Parties: If the Court should recognize a “right” of the spouses to live “according to the means they have become accustomed”, the judge may attempt to adjust the incomes of each spouse, as best as possible, in a way that approximates their prior lifestyle. This action tends to strongly equalize post-divorce income, however often heavily penalizing the higher-earning spouse.
? Earning Capacities of the Parties: A spouse with the better future earning potential and financial prospect, (including inheritances) is likely to have to pay higher spousal maintenance (if awarded) than one who is not.
? Alternative Sources of Income: Medical, insurance, retirement or other benefits up to 50% may be used for spousal support if accumulated during a marriage of 10 years or more.
? Age of the Parties: At the time of divorce, it is generally accepted more youthful spouses are considered to exercise greater ability to productively progress with their lives, and therefore thought to require shorter periods of spousal support if determined necessary.
? Health of the Parties: Poor health goes towards need, and potentially an inability to support for oneself. The courts do not want to leave one party financial isolated due to illness or injury that may likely leave the person indigent.
? Length of the Marriage: Generally the longer the marriage lasted the greater the period for spousal support if so ordered. It is not uncommon for the judge to make an award for permanent support if the marriage lasted for over 10 years, especially where one spouse has been economically dependent on the other spouse for most of the marriage.
? Marital Misconduct: If the divorce is awarded based upon the misconduct of the other spouse, the court may consider that misconduct in making an award of support, but may not consider the separate property of the spouse in determining the amount. Misconduct of either spouse may also be considered in the determination to deny any financial maintenance.
? Other Factors: In addition to the above, the Court may consider ANY economic circumstances of either party that the judge may determine just or proper including:
- Extent to which a party’s earning power, expense or financial obligations will be affected by serving as the custodian of a minor child(ren);
- Contribution by one party to the education, training or increased earning power of the other party
- Relative education of the parties and the time necessary to acquire sufficient education or training to enable the party seeking alimony to find appropriate employment;
- Property brought into the marriage by either party;
- Relative assets and liabilities of each party;
- Contribution of a spouse as homemaker;
- Tax consequences to either party.
5. Continuation, Modification and Termination of Award
? Continuation: Upon petition, a court may order temporary spousal support (pendente lite) while the divorce is pending. However, upon a Judgment of Divorce it should not be expected that a previous order to continue support will be automatically sustained. Although a continuance for spousal maintenance may be requested (usually for a specific length of time), the arguments for support during and after the marriage may be different and subject to modification or termination.
? Modification: With the exception of a lump sum payment, an award of spousal support may be modified at any future date based on a reasonable demonstration of a change of circumstances by either party upon petition (proper notice to the other party and application to the court).
? Termination: Upon petition to the court, an award of spousal support may be terminated upon the submission of proof to the Court of: emancipation of the last child; death of either spouse; remarriage of the recipient spouse; or if the recipient is openly living with a member of the opposite sex. [Code of Alabama: Title 30, Chapters 2-51, 2-52, and 2-55].
6. Financial Considerations
? Child Support: Financial child support is the condition where one parent is required to contribute to the support of child(ren) through the agency of the other parent or guardian. In this manner, regulations under the Internal Revenue Service interpret child support as a normal part of parenting financial responsibilities. Child Support payments are therefore considered a necessity for a parent’s support of their own offspring (after-tax dollars) and not taxable to the person who receives it, nor tax deductible to the person who pays it. (IRS Publication 501, Exemptions, Standard Deduction, and Filing Information)
? Alimony: Again, spousal support is treated very differently and should not be confused with financial child support. With respect to taxation, spousal support (alimony) is a payment to or for a spouse or former spouse under a divorce or separation instrument. It is considered a taxable gross income - treated as income to the receiving spouse, and deducted from the income of the paying spouse (pre-tax dollars). In the event parents have dramatically different incomes, there may be some tax advantages to the non-custodial parent to pay alimony in lieu of child support, even if a judge wouldn't ordinarily award it. It is important to note the IRS does not recognize voluntary spousal payments made under a divorce or separation agreement which has not been approved by the Court. (IRS publication 504, Divorced or Separated Individuals).
? Pendente Lite Maintenance: Like other forms of periodic installments of spousal support, pendente lite maintenance, is taxable to the recipient and deductible by the paying spouse under the rules of the Internal Revenue Service. As a result, a higher earning parent may be financially better off supporting the custodial parent in the form of an alimony payment instead of child support because alimony is paid in pre-tax dollars and child support is paid in after-tax dollars.
? Lump Sum Payment: If an award of spousal support is paid in a lump sum (alimony in gross), there is no tax ramification for either spouse. Instead, this type of payment is considered a distribution of property.
? Retirement Funds: Alabama law allows a Court to divide retirement funds in any marriage that lasts over ten (10) years, if the funds were accumulated during the course of the marriage. The Court may also consider the distribution of retirement funds as part of an award for spousal support.
? Insurable Benefit: Persons that receive spousal support should be aware that this form of financial maintenance will cease upon death of the payor. Because the recipient has an insurable interest in the person being insured (payor), it is permissible for the recipient to purchase an insurance policy (such as life and/or disability) in an amount sufficient to replace the spousal support in the event of accident, illness or death on the part of the payor.
? Bankruptcy: Under the rules of the Federal bankruptcy code, spousal support is a non-dischargable obligation. That is, regardless under which chapter of the code bankruptcy may be filed, a person may not escape their financial requirement to make payments to the Court awarded recipient.
7. Failure to Pay
Under Alabama law, with the exception of filing a petition to have the payor spouse held in contempt of court for failing to pay spousal maintenance, there are few legal remedies available to the party that is owed money. Nor does the State does offer legal representation (free or remunerated) to enforce an order for spousal support. Generally, the recovery of spousal support is left to collection procedures that are available to all other creditors. The procedures for reporting maintenance obligations in arrears are available at each of the major credit reporting agencies.
H. Property Division
1. Equitable Distribution
There is no statutory provision in Alabama for the division of property. Under Alabama case law, Alabama is considered an "equitable distribution" state. This means the Court has the authority and full discretion to divide all marital property (assets and debts) in a fair and equitable, but not necessarily equal manner. Moreover, the Court's discretion may not be disturbed on appeal without a showing of clear abuse. The Court may not however divide separate property, regardless of whether the separate property was obtained before or after the marriage.
? Marital Property: Generally, marital property encompasses all jointly-owned real and personal property acquired during the marriage. This may include the main residence, vacation or investment property, automobiles, home furnishings and equipment, furs and jewelry, joint checking and savings accounts, mortgages and revolving loans, credit card debt, and other “co-mingled” assets and liabilities that were purchased or obligated during the course of the union. There is no fixed standard to divide marital property, instead the Court will decide and distribute based on the facts and circumstances of each case. Marital fault may also be considered in determining an equitable distribution of property. However, not all property is considered “marital property”.
? Separate Property: Generally, assets (real or personal) acquired before the marriage or by gift or inheritance during the marriage may be excluded from the marital estate if neither the property, nor its income, has been used for the common benefit of the both spouses during the marriage.
2. Factors for Consideration of Equitable Distribution
To decide the division of marital property owned by divorcing couples, and whether any property held by one of the parties should be included in the marital estate, the Court will consider several factors for the purpose of making an equitable distribution. The considerations may include but are not limited to:
? Length of the marriage
? The age, health, station, income, vocational skills, employability, estates, liabilities and needs of each party
? Value of the property set apart to each party
? Standard of living the parties established during the marriage
? Sources of income, including medical, retirement, insurance or other benefits
? Services of each party as a parent, wage earner and/or homemaker
? Contribution by one party to the education, training or increased earning power of the other party
? Opportunity of either party to acquire future income and assets
? With whom the children will reside the majority of the time
? Tax consequences of the distribution
? Any prior marriage of either party
? Frequency and purpose of use of property
I. State Statutes and Related Links
1. State of Alabama, Judicial Department, Administrative Office of Courts
? http://www.alacourt.gov/
2. Alabama Judicial System
? http://www.judicial.state.al.us/
3. Alabama Department of Human Resources, Child Support Enforcement
?http://www.dhr.state.al.us/page.asp?pageid=288
4. State Legislatures, State Laws and State Regulations
?http://www.llsdc.org/sourcebook/state-leg.htm
5. Alabama's Legal Information Network
?http://www.alalinc.net