Divorce Laws in Alabama

Alabama

This is an overview of the Divorce Laws in Alabama.

This guide will cover everything from how assets are divided to how alimony and child support are calculated, and more.

With that, let’s dive in.

Equitable Distribution and Asset Division

division of property handled

Marital Property and Division of Assets

Alabama is an equitable distribution state.  This means that in a divorce, courts will divide property in a fair and equitable manner.  But equitable does not mean a 50-50 split.

Courts will use a number of factors to determine what is fair and equitable.

Before this happens, the determination must be made as to what constitutes marital property.  Generally, most assets accumulated during the marriage are considered marital property, but there are exceptions, such as with gifts or inheritance.

Non-marital property is awarded only to the spouse who owns it.  Exceptions to this may be made if the non-marital assets are commingled during the marriage.

Judges have a fair amount of discretion and will base a decision on things such as the length of the marriage, the economic contributions of each spouse, whether or not one spouse contributed as a homemaker or supported the other spouse’s education and training, tax consequences, sources of income including retirement and disability benefits, the needs and arrangements made for children, and other similar factors.

Debts

debts

Debts in Alabama are treated just like assets in a divorce.  This means that they will be divided fairly and equitably, although not necessarily on a 50/50 basis.

It should be noted that any premarital debt acquired by one spouse is their debt exclusively, unless the other spouse added to that particular account (such as using a credit card).  When that happens, the other spouse is responsible for that part of the debt.

Also, even if one spouse racked up the debt, if both spouses are on the agreement with the creditor, then contract law takes precedence over state law, and both spouses will be responsible for the debt.  For example, if the spouse who is obligated for the credit card debt under a divorce agreement doesn’t pay off the debt, the card issuer can take collection actions against the other spouse for the entire amount due.

Gifts and Inherited Property

When one spouse receives a gift or inheritance in Alabama, it is considered separate property and not subject to equitable distribution.  But gifts and inheritances used to benefit both spouses are deemed marital property.

Also, any appreciation in a separate gift or inheritance that takes place during a marriage is still considered separate property.

To remain separate property, a spouse should be prepared to prove that the asset in question is separate property and has not been commingled with marital assets.

A way to protect a gift or inheritance is to have a spouse sign a pre- or postnuptial agreement whereby he or she agrees that the asset belongs exclusively to the other spouse, no matter how it is used in the marriage.

Pensions, IRAs, 401Ks and Retirement Plans

Retirement Plans and Pensions get divided

In Alabama, pensions and retirement accounts are considered marital property and subject to equitable distribution laws.  This applies only to the amounts accumulated during marriage.  Any amounts before marriage or after separation are considered separate property.

After a final decree, legally splitting pensions and other retirement funds is done by having an attorney or a specialized firm create a qualified domestic relations order, more commonly referred to as a QDRO.

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The QDRO must be approved by the courts and then it is submitted to the plan administrator who must also approve it.  This establishes that a spouse can be considered an alternate payee, and the account is divided according to the specifics of the QDRO.

Determining the exact value of pensions and retirement accounts can be a complex process, and many times an expert such as an accountant, business appraiser, pension valuator, actuary, or a certified divorce financial analyst is retained to make an accurate assessment.

Separate Property

In Alabama, property accumulated during a marriage belongs to both spouses and is considered marital property.  It is subject to fair and equitable distribution, unless it has been acquired as a gift or inheritance, in which case it is considered separate.  This can be invalidated for any property that is commingled with marital property during a marriage.  At that point, it becomes marital property.

Property acquired before a marriage or after the date of separation is considered separate.  To be considered separate property, a spouse must present evidence that the property is separate.

There are exceptions to these rules and it is best to consult an attorney if you are not sure of the status of your asset or your situation.

Alimony and Child Support

Alimony in Alabama

Alimony

Alimony can be granted on a temporary or a permanent basis in Alabama.  The amount and duration are based on the circumstances that are unique to each divorce.

It must be demonstrated that one spouse has a financial need and that the other spouse has a financial ability to pay.  Alabama courts also place a great emphasis on the length of the marriage.  Longer marriages will result in more generous awards to the spouse in need.

Other factors that may be included are:

  • The present and future earning capacity of each spouse, including if a spouse’s ability to earn an income has been impacted by being a stay-at-home caretaker.
  • The needs and standard of living of each spouse
  • Age, physical and emotional health of both spouses
  • Existing debts and assets
  • Child custody arrangements and whether or not the primary care spouse can hold a job while taking care of the children
  • Tax consequences due the division of assets for each spouse
  • Any agreements that are in place between the spouses

Temporary support may be granted before a final settlement has been reached.  Courts have considerable leeway when it comes to deciding the amount and duration of alimony.

We cover how alimony works in Alabama in greater detail here.

Child Support in Alabama

Child Support

Like all other states, Alabama recognizes that both parents must provide for the well-being of any children, whether they are married or not.

Alabama bases child support on what is known as the “Income Shares Model.”  This is based on the concept that a child should receive the same ratio of support from each parent that they would have been given had the parent’s relationship remained intact.

This method calculates the total amount that an intact family would spend supporting their children.  This amount is then split proportionately according to each parent’s individual income.

As a result, the parent with a larger income pays a greater percentage of support and the parent with a lesser income assigned smaller amount.

You can use the Schedule of Basic Child-Support Obligations chart to get an idea of what might be expected in a support case.

Courts are free to deviate from this formula to allow for unique circumstances that could have an impact.  Some of those circumstances might include:

  • There are shared custody or extensive visitation rights with your children that are beyond the norm.
  • One parent is burdened by a substantial cost for transportation related to visitation.
  • College education expenses are incurred before the child reaches 18.
  • One or more children earn, receive, or inherit substantial income or assets.
  • Other extenuating circumstances that the courts deem in the best interests of the child.
To learn more, check out our guide on child support in Alabama.

Child Custody and Visitation

Child Custody in Alabama

Child Custody

Just as it is all other states, custody and visitation issues in Alabama are driven by what is in the best interests of children in a divorce.

Each custody case is different and as such, each of the following factors may be weighted differently depending on the particular facts of a case:

  • The sex and age of the children
  • The characteristics and needs of the children, including their emotional, social, moral, material, and educational needs.
  • The home environments of each party.
  • The specific characteristics of the party seeking custody, including that parent’s age, character, stability, mental and physical health.
  • Each parent’s capacity and interest in providing for the needs of the children, including social, moral, material, and educational needs.
  • The interpersonal relationship between each child and the interpersonal relationships between the children and the parents.
  • The effect on the child of disturbing for disrupting or continuing in existing custodial situation.
  • The preference of the child if they are old enough and mature enough to provide input.
  • Reports or recommendations from expert witnesses for independent investigators.
  • Any other factor or relevant evidence that may be presented by the parties that has a bearing on a determination of the best interest of the child.
Joint custody is preferred because the state favors children having frequent and continuing contact with each parent.

Alabama is also one of the states that have adopted the Uniform Custody Jurisdiction and Enforcement Act which means that it must honor and enforce child custody decisions made by courts in other states.

The state recognizes grandparents’ visitation rights as well.

Substance Abuse

Substance abuse can be cited as a fault-based ground for divorce in Alabama.

Although it is more difficult to prove than just citing irreconcilable differences in a no-fault divorce, some spouses who divorce in Alabama may choose to go this route because it can have a profound impact on child custody issues.

If the substance abuse is severe, Alabama courts will not allow a parent to take custody of a child if there is a danger to the child.  The court always places the best interests of the child at the forefront of these discussions.

Substance abuse can also have an impact on a division of assets.  If the courts find that the abuse has had a material impact on the finances of the marriage, they will likely award a larger portion of the assets to the other spouse to compensate.

Divorce Process

Bifurcation of marital status

Bifurcation of marital status in Alabama means that both parties can legally divide their divorce into two stages.

The first part satisfies the grounds for the divorce and the second part addresses the financial aspects of the divorce such as child custody, visitation, child support, alimony or other contentious issues that may have stalled or become major sticking points that are keeping the divorce from being finalized.

Alabama courts may be somewhat reluctant to grant bifurcation because it creates judicial inefficiency, meaning that a divorce will actually have to go through two hearings instead of one.

Couples should understand that they could rack up more legal bills by going through two hearings instead of one as well.

Financial Disclosures

disclosure obligations

In Alabama, each spouse must disclose to the other the amount and type of assets they have so that there can be an equitable division of those assets as part of the final divorce decree.

Accurate and complete disclosures are essential because they will also be used to determine the financial health of each spouse to determine if spousal maintenance is required and what amount of child support should be awarded.

Spouses may be reluctant to release this type of information and in some cases, it may be necessary to subpoena information directly from financial institutions to get the information needed.

Also, if a spouse lies on a financial disclosure document, they may be liable for both criminal and civil penalties.  A lack of full disclosure can carry a stiff penalty.

Spouse’s Default

When someone petitions for a divorce in Alabama, the defendant has 30 days after being served to respond to the divorce complaint

If they don’t comply within the allotted timeframe, then a petitioner can file for a default judgment and a judge may approve a final decree after the state’s waiting period has been completed.

When a spouse does not respond, they forfeit their right to contest any terms of the divorce, including issues such as child custody, support, alimony and a division of assets and debts.

In some cases, it may be possible to seek an extension, such as if there is a health or family emergency, or if a respondent was on active military duty.

Other Divorce Issues

Domestic Violence

domestic violence

Domestic violence can be an ugly part of an Alabama marriage.  If you are a victim, any divorce actions are secondary to the immediate safety of you or children who may be in immediate danger.

Domestic violence can include any kind of physical abuse, emotional abuse, stalking, or any other kind of harassment including those made through phone calls, mail, or social media inflicted on one spouse by the other.

Law enforcement treats domestic violence with a high degree of concern.

This means the first thing a spouse must do is leave the residence where the abuser is living and if the threat is imminent, call the police.

It is possible to ask a court for a civil order of protection to legally keep a spouse away from you either before a divorce action begins or during a divorce already in progress.

Domestic violence is a ground for divorce in Alabama.  When it is proven, it can be an important issue when dealing with child custody.  If documented, then the abuser may not be allowed any custody privileges, because courts always put the best interests of children first when it comes to all issues in a divorce.

Health Insurance

health insurance during and after divorce

Some divorce settlements in Alabama may include one spouse continuing to provide health insurance for the other spouse, especially when one spouse has been a home maker during the marriage.

Overall, the vast majority of employers dictate that a spouse may no longer remain on the other’s health insurance plan and they must seek out their own healthcare coverage if not covered in a settlement agreement.

An ex-spouse can apply for COBRA (Consolidated Omnibus Budget Reconciliation Act) benefits.  This is a law that protects people from losing health coverage during major life transitions.

It allows you to continue with your spouse’s current coverage for up to 36 months as long as you pay the premiums.  The major drawback is that this can be very expensive because an employer will no longer cover any portion of the premium.

A more financially reasonable option may be to purchase health insurance on an exchange as part of the Affordable Care Act.

Infidelity and Adultery

adultery

Infidelity and adultery occur when a spouse has sex voluntarily with someone other than their spouse while they are still married.  In Alabama this is considered one of the actions that constitutes marital misconduct and can be used as a fault-based reason for divorce.

Infidelity may become more of an issue in things such as child custody or in a division of assets.  Alabama courts places a primary concern on the well-being of children in a marriage and if it can be shown that adultery has created a negative environment, then custody may be affected to some degree.

If it can be shown that an adulterous spouse spent considerable marital assets on an affair, such as expensive gifts for a lover, then this may also have an impact when it comes to a division of assets.

Military Divorces in Alabama

If you or your spouse are in the military either you or your spouse must reside or be stationed in Alabama.

The grounds for military divorce are the same as they are for a civilian divorce in Alabama.  You can either cite a no-fault ground of irreconcilable differences, or a fault based reason including:

  • a physically and incurably incapacitated spouse at the time of the marriage
  • either spouse committed adultery
  • habitual drunkenness
  • abandonment of the marriage for a period of at least 12 months
  • a mental illness that caused a spouse to be institutionalized for at least 5 consecutive years and the spouse is incurably insane at the time of the divorce filing
  • imprisonment for at least 2 years, with a sentence of at least 7 years in prison
  • a crime against nature, human or beast, before or after the marriage,
  • a wife was pregnant at the time of the marriage and didn’t tell her spouse
  • violence or cruelty, as long as you are able to prove that you were fearful for your life or health while the violence was taking place

When a spouse is in the military, they have certain protections afforded to them by the Servicemembers Civil Relief Act.  This allows them to postpone the divorce while they are overseas or otherwise not able to adequately respond to the petition due to military service commitments.

A service member may choose to waive delaying the divorce by signing off on paperwork which will then allow the divorce to proceed uncontested.

Child support and spousal support are determined by Alabama state guidelines, but federal law dictates that these awards may not exceed 60% of a servicemembers pay and allowances.

A division of retirement benefits are governed by the Uniformed Services Former Spouses’ Protection Act. This legislation directs how a former servicemember’s retirement benefits should be divided after divorce.

A key element is that the former spouse must have been married to the former servicemember for a minimum of 10 years while the military member has served on active duty.


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