Frequently Asked Questions
What information do I need to provide to my attorney?
Your attorney must have all the facts to represent you properly. Anything you tell your attorney or anyone in the attorney's office will be held in strict confidence and will not be disclosed without your permission. You should not withhold any information, and above all, your attorney must have the entire truth. Also, your attorney will likely recommend that during the course of your case, it is in your interest not to discuss your case with other people, even well-meaning friends. Discussing your case with friends and relatives may turn your friends and relatives into witnesses who may ultimately be called by the opposing side to testify against you in court.
Can I get a divorce if my spouse does not agree to one?
In Alabama you do not have to claim any type of fault or misconduct by your spouse in order to get a divorce. Alabama has many grounds for divorce. Some of these grounds are voluntary abandonment for one year, physical cruelty, adultery, addiction to alcohol or drugs, incompatibility of temperament, and irretrievable breakdown of the marriage. The last two grounds are the basis for what is commonly known as a "no-fault" divorce. This simply means that the divorce is granted by the Court because the married persons are unable to get along to such an extent that the marriage has suffered irreparable damage.
Can I get a divorce in Alabama if I do not live in Alabama?
Whether or not Alabama courts will consider giving you a divorce is first dependent on whether or not Alabama courts have "jurisdiction" over your marriage and you and your spouse. There is a residency requirement which first must be satisfied in order for an Alabama court to have jurisdiction to grant a divorce. This requirement is satisfied if both parties or the defendant (the person against whom the divorce is filed) are domiciled or permanently reside in Alabama. There are certain limited exceptions to this general rule based on military service and other situations. If the defendant does not reside in Alabama, the plaintiff (the person who files the divorce) must have been domiciled in Alabama for at least six months immediately preceding the filing of the divorce complaint or petition. Jurisdiction is an important issue, and different facts such as having previously lived in Alabama as a married couple may have an effect on whether or not you can file the divorce in Alabama. These issues and all of the relevant facts are some of the very first questions that must be resolved by your attorney before you proceed to court whether you are a plaintiff or defendant.
What is the difference between a divorce and a legal separation?
The short answer to this question is that a divorce includes a final, permanent division of the assets and liabilities of your marriage and a legal separation does not include a final, permanent division of the assets and liabilities. In a legal separation as well as a divorce there can be an order issued by the Court which will include child support, alimony, and the use of certain property and assets as well as the allocation between the parties of certain financial obligations to creditors. However, there is no dissolution of the marriage, therefore, during a legal separation, the parties are not allowed by law to "date" or permanently dispose of property that remains at issue within the marriage.
If I leave our home where we live as a married couple, will I lose my right to our house since I left?
A lot of people believe or have heard through well-meaning friends that if they leave their residence at any time before a divorce that they have "abandoned" their home and therefore they have essentially given up any right to a share of the house or the value of the house in the divorce. Abandonment is a specific legal term that is used to describe a situation where one spouse has left the marriage and/or the home, and they cannot be found, they have not provided support or have not had any contact with the other party in a year or more. Merely leaving the marital residence to avoid hostility or other negative circumstances is not abandonment. However, it is always better, particularly if children are involved, to discuss such actions like leaving the residence with your attorney before you take the action. Your attorney cannot go back and undo or change facts and circumstances that have been created prior to your seeking advice from your attorney.
What is an "uncontested divorce?"
An uncontested divorce can often be obtained more quickly and at less expense than a contested divorce or divorce that goes to trial for a resolution of all of the issues in the divorce. An uncontested divorce can only occur when both parties agree to all of the terms of the divorce. Significant disputes over child custody, child support, visitation rights, alimony, or property division will prohibit a divorce from being uncontested.
Can my spouse and I use the same attorney?
Attorneys can ethically represent only one party. If the attorney represents you, the attorney should be sure that your spouse knows that the attorney represents you and cannot represent your spouse. Your spouse may choose to represent himself, which can then result in there being only one attorney involved; however, the attorney will not be both parties' lawyer and will advocate only for the person whom he or she represents.
Is it better to be the one who files the divorce first?
If both parties are intent on or considering asking for a divorce, whether or not you should file first is completely dependent on the facts of your particular case and often somewhat dependent on the way divorces are handled in the county where the divorce will be filed. You should discuss all issues of the divorce with your attorney before making the decision about when to file, particularly when children are involved.
What is involved in getting a divorce?
If you take the emotion and relationships out of a marriage and think of it in terms of a business run by two people who are both members of the two-person board of directors for the business or who are partners, a divorce is a legal action that puts a final end to the business or "dissolves" the business and divides up all of the assets and liabilities of the business. If there are children involved in the business or marriage, the dissolution of the business will also divide up or create a separate sharing of all of the rights and responsibilities the business members (or parents) have toward the minor children.
Dividing up all of the rights and responsibilities toward the children and dividing up all of the assets and liabilities held by or accumulated during the marriage can be accomplished by an agreement reached by the parties, which is then accepted by the judge (or Court), or all of the divisions will be actually determined by the judge at a trial or hearing.
All divorces, whether accomplished by an agreement or by a trial, will eventually result in a Final Decree or Final Judgment of Divorce which is signed by the judge and included in the record at the court clerk's office.
A divorce case begins with the filing of a complaint or petition for divorce in the Circuit Court of the county in which the divorce is filed. The filing fee is generally $150 to $300, depending on the county. The party filing the complaint (or petition) is the plaintiff, and the opposing party is the defendant. The complaint is normally filed in the county where the defendant resides or where the parties resided at the time they separated.
What does an “award of child custody” involve?
In family law the term “custody” of minor children refers to the combination or collection of rights and responsibilities that parents have and enjoy with regard to their minor children. And in family law cases, the allocation of those rights and responsibilities between parents causes the most anxiety. When parties divorce or there is an issue of custody of minor children between never married parents, in the absence of an agreement between the parents, the court are called upon to create custodial arrangements for children of the marriage under 19 years of age in an “award” or order of custody. In other words, there must be a decision made either by agreement of the parties or by the judge in a trial as to who will have the authority to make major decisions about a child, where the child will reside, and how the child will spend time with the parties
A custody award consists of two components - legal custody and physical custody:
- Legal custody encompasses the rights and responsibilities of the parents to make major decisions concerning the child, including education, health care, religious training and other decisions that have a major impact on the welfare and well being of the child. The courts in Alabama favor awards of joint legal custody, wherein both parties are to have access and input into major decisions concerning the child, regardless of with whom the child resides following divorce. The court may also designate one parent to have final decision making authority over certain decisions in a child’s life.
- Physical custody determines where a child actually resides. The parent with whom the child resides has physical custody and is the “custodial parent.” The noncustodial parent, the parent who is not designated the physical custodian, typically has visitation periods or custodial periods with the child, during which times that party is responsible for the safety and welfare of the child.
Many people have heard the term ‘joint custody’ and much confusion surrounds this concept. While the parties may share joint legal custody, parties sometimes also agree to share joint physical custody, where the parties share more equal amounts of time with a child than afforded by an arrangement where one party has physical custody. Joint physical custody requires the parties to share physical custody of a child in a way that assures that the child has frequent and substantial contact with both parents, but joint physical custody does not require that the child necessarily spend equal amounts of time with each parent. Joint physical custody typically also requires the parties to jointly make major decisions concerning the child and, therefore, expects a high level of cooperation and communication between the parties.
When the court is called upon to make an initial custody determination, the judge should consider at least the following factors:
- The sex and age of the child
- The child’s needs, including education, social, and material
- Any special characteristics of the child, including emotional
- The home environment that each party seeking custody can provide for the child
- The characteristics, qualities, traits, habits, morality of each party seeking custody of the child
- Each party’s ability to provide all that the child needs
- The relationship of the child to each parent or party seeking custody
- The relationship of the child to any siblings or step-siblings
- Any effect of continuing a current custody arrangement or any disruption if asking for a change from the current custodial situation
- The child’s preference depending on the child’s age, the circumstances, and the maturity of the child’s reasons for the preference
- The reports or recommendations of experts, custodial evaluations, and/or guardians ad litem (attorneys appointed by the court to represent a child)
- Any other relevant evidence which the court may consider, such as - which parent fosters rather than hinders the other parent’s relationship with the child and which parent encourages the other parent’s custodial or visitation periods with the child.
An award of custody is clearly the most difficult and probably the most important decision judges are called upon to make in family law cases. The above is merely a brief summary of some of the issues involved. Litigation involving the issue of custody should be given the highest priority and there is no substitution for preparation and a thorough presentation of the facts in a case involving custody of minor children. Contrary to a commonly held misconception, neither party has to prove the other party to be “unfit” in order to be awarded custody. See also the FAQ herein on why neither party has an “automatic” or legal advantage in a custody determination.
Does the father have to prove the mother “unfit” to be awarded custody of the minor children? Or, will the mother be awarded custody of the minor children unless the father proves her to be “unfit?”
The short answer to these questions is an emphatic “No.”
Years ago the law in Alabama presumed that the custody of young children should be placed with the mother. That law, known as the “tender years doctrine,” essentially required the father to prove the mother to be “unfit” in order to be awarded custody of their children. In 1981 the “tender years doctrine” was negated by the Alabama Supreme Court which determined that the presumption in favor of mothers of young children was unconstitutional and unfair to fathers, who should be presumed to be as capable as mothers to exercise the care, custody and control of minor children. Continuing today, the law requires judges to consider both parents as being on an equal standing when they come before the court on a determination of custody of minor children, and it is up to the judge to make the determination of who should be awarded custody of the minor children only after a thorough examination of all of the evidence relevant to that issue. In other words, there is no basis for the mother to believe that she will be awarded custody simply because she is the mother, and conversely there is no basis for a father to believe that he has no chance of being awarded custody of minor children in Alabama.
How long do I have to be married in order to get alimony in my divorce?
It is important to keep in mind that there is no entitlement to alimony in Alabama. Like other divorce issues, whether alimony is paid by one spouse is determined by either agreement of the parties or by an order of the trial court based upon consideration of a number of factors. The length of a marriage, determined from the date of the marriage up to the filing of a petition or complaint for divorce, is only one factor in a request for alimony. A number of other factors are considered by the court, and by attorneys in attempting to formulate agreements, in fashioning an alimony award, including:
- The standard of living the party requesting alimony enjoyed or became accustomed to during the marriage
- The needs of the requesting party
- The requesting party’s future prospects of maintaining a particular standard of living
- The parties’ ages and health
- Any misconduct that contributed to the break-up of the marriage and who committed the misconduct
- The length of marriage
- What amount of assets and liabilities the requesting party receives in the division of assets and liabilities.
As with other divorce issues, it is essential to keep in mind that there is no magic formula an attorney can use to figure whether alimony will be awarded and, if so, how much. Instead, the many factors that make each marriage unique contribute to the arguments to be made in support of and against an award of alimony. The well-intended stories or opinions of friends and family members about what an award of alimony should or should not be should definitely be disregarded, as those opinions and stories are generally as valuable as the price that was paid for them. Just as every marriage is unique, so will be the resolution of the various each issue in each divorce.
How long will my case take before it is completed?
Unfortunately, there is no one-size-fits-all answer to this question. A divorce can be obtained relatively quickly when the parties reach an agreement on all of the issues. Likewise, a divorce can take months and even years when the parties agree on nothing and the case must be tried. Much depends upon how reasonable the parties are and how willing each side is to compromise in order reach a settlement agreement. Most factors which prolong the divorce process are well beyond the control of attorneys and parties. You can speed the process along, however, by always being completely honest with your attorney, making yourself available to talk to and meet with your attorney, being willing to consider a reasonable range of options in settlement negotiations, and preparing yourself to address the issues involved in divorce from a business-like perspective, and by committing to the thorough preparation and effective presentation of your case for trial or for settlement negotiations.
How much will my case cost?
Costs of a divorce case can vary dramatically, depending upon whether the parties are able to reach agreements as to the many issues involved. It is possible to handle a divorce that involves the parties’ settlement of all issues within a relatively brief period of time for the amount of the initial retainer or less. When parties are unable to agree or one party refuses to be reasonable in negotiations, however, costs can spiral because of the attorney time required to sort through the issues, gather and prepare evidence, and then litigate the case at a trial. We understand that the high cost of legal fees is yet another element in an already stressful process. While we cannot make representations as to the ultimate cost of a divorce case, we can routinely update you throughout the process as to ways to save yourself money and make general projections based upon case status and happenings. We strive to provide quality legal services while being ever mindful of the associated costs.
Montgomery, AL 36117-9003 
