Alabama Divorce Law

Grounds for an Alabama divorce: For an Alabama court to grant a divorce, it must find a basis or "cause" for the divorce, commonly referred to as the "grounds" for divorce, which are set out by Alabama state statute. The vast majority of Alabama divorces are granted on the "no fault" grounds of incompatibility or irretrievable breakdown. These are two separate grounds according to the statute, but are used interchangeably and essentially mean the same thing.

Fault Divorce in Alabama:  Other "fault" grounds for which an Alabama divorce may be granted include the following:

  • Adultery;
  • Voluntary abandonment from "bed and board" for one year before the filing of the complaint;
  • Imprisonment for two years, the sentence being for seven years or longer;
  • The commission of the crime against nature, before or during the marriage;
  • Becoming addicted after the marriage to habitual drunkenness, or habitual drug use;
  • Physically and incurably incapacitated from entering into the state of marriage at the time of the marriage;
  • Confinement in a mental hospital for a period of five successive years, with a certified statement of the superintendent of that mental hospital that the spouse is hopelessly and incurably insane;
  • If the wife was pregnant at the time of the marriage, without the husband's knowledge or agency;
  • Domestic abuse or reasonable apprehension of such abuse, by either party; When the wife is living separate from the husband in Alabama, without his support, for two years preceding the filing of the complaint.
Common Law Marriage: Common law marriage is recognized in Alabama, the test being the intent of the parties. The elements necessary to establish a common law marriage are:
  • Capacity: both spouses must be at least 14 and mentally competent;
  • Mutual consent to enter into the marriage relationship;
  • Public recognition of the existence of the marriage (calling each other "wife" and "husband"); and
  • Cohabitation or mutual assumption openly of marital duties and obligations.

There must be mutual consent between the parties, followed by cohabitation and living together as husband and wife. However, being engaged (expressing the intention to marry in the future) and living together does not establish a common law marriage.

Same Sex Marriage: Alabama has adopted the federal Defense of Marriage Act passed by Congress in 1996, which bars federal recognition of same sex marriages and allows states to ignore gay marriages performed elsewhere. Alabama has also adopted a non-binding resolution urging Congress to pass a federal constitutional amendment banning same-sex marriage. A State constitutional amendment to ban same-sex marriage was introduced but failed.

Jurisdiction and Residency Requirements: To obtain an Alabama divorce, you need to meet the residency requirements set out by the state. In Alabama, at least one of you must have lived in Alabama for six months. If both of you reside in Alabama, you do not need to meet the six month requirement.

What County Should You File In? The person filing for an Alabama divorce can file with the circuit court:

  • In the county where the other spouse lives, or
  • In the county where the two of you lived when you separated, or
  • If your spouse doesn't live in Alabama, in the county where you live, or
  • If it is an uncontested divorce, any county you wish.

Alabama Divorce: Default or Trial: An Alabama divorce is obtained either by default or by trial. A default divorce occurs when the defendant party does not respond within the legal time limits. If the defendant does respond, unless the case is settled prior to trial, there will be an actual trial before a judge with each party able to call witnesses.

Uncontested Alabama Divorce: Many Alabama divorces today are uncontested; meaning both the husband and the wife agrees to get divorced. The parties usually enter into a written marital agreement defining their rights and duties and other issues of divorce. This agreement should clearly state all of the terms of divorce, including grounds, child support and custody, alimony and property division. This agreement is presented to the judge and, if approved, the divorce is granted and the agreement is made part of the divorce decree.

Remarriage: Alabama law makes it illegal for either spouse to remarry until sixty days after the judge signs the Final Judgment of Divorce.

Attorneys and Their Fees: Attorney's fees vary from greatly within the state and with regard to the complexity of the divorce. Factors affecting an attorney's fee include child custody, the size and complexity of the property settlement, tax advice, alimony settlement, fault of the parties, etc. An attorney may not ethically represent both parties in a divorce proceeding. One attorney may draw up all of the paperwork, but that lawyer only represents the plaintiff (the party filing for divorce).

Alabama Divorce Mediation: Divorce mediation is a process by which a neutral third party, trained in mediation, assists a couple in reaching their own settlement of the issues involved in obtaining a divorce. A mediator does not make decisions for the parties or tell the parties what to do, but rather outlines the issues and keeps the parties focused on negotiating a settlement that both parties can live with. Mediators do not act as attorneys and do not give legal advice. Mediation works best when both parties have independent attorneys who can advise them and assist them with the negotiation of the issues. Alabama has a statute called "Mandatory Mediation Prior to Trial".

Under the Alabama Divorce Mediation statute, mediation is mandatory:

  • When all parties agree;
  • Upon a motion by either party. The party asking for mediation shall pay the costs of mediation, except attorney's fees, unless otherwise agreed; or
  • At the trial court's discretion.

The trial court may order mediation and will allocate the cost of mediation, except attorney's fees, among the parties. Civil sanctions, including contempt of court, can be imposed for failure to mediate under the statute.

Domestic Abuse: Mediation cannot be ordered for the resolution of issues in a petition for an order of protection, in the case of potential domestic abuse. However, once a protection order is in place, a court may order mediation if

  • the victim requests mediation,
  • the mediation is conducted by a mediator trained in domestic violence, and
  • the victim may have a support person of his or her choice in attendance at mediation.


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