Contested Divorce

Contested Divorce HuntsvilleThere are two ways of obtaining a contested divorce in the State of Alabama, either by default or trial. A default divorce happens when the spouse against whom the divorce is filed (the defendant) doesn’t respond within the required time limits. However, if the defendant does file a response to the filing spouse’s (the plaintiff) complaint, the court will set a trial date for the case as a civil action. If the other party files a response and disagrees with what the plaintiff requested, the case is contested.

The defendant may disagree with everything the plaintiff has in his or her complaint or only some of the issues. The parties may start a divorce agreement on the issues that have been worked out with the remaining questions to be decided by a judge. Unless the case is settled before trial, there will be a hearing in front of a country circuit court judge. Both parties have the right to present evidence and call witnesses on their behalf.

The judge in a divorce case is tasked with deciding all of the issues—to grant a divorce or not, who will receive custody of the children, the amount of child support, whether alimony should be paid, and the equitable division of property. In a default divorce, the judge makes his or her determination based on the testimony of just the party who filed the suit.

 

 

Prior to Divorce

Married couples in Alabama have two remedies that they might want to try before filing for divorce.


Legal Separation

  • Legal separation may be an option when one spouse wants to live apart from the other spouse but doesn’t want to get an absolute divorce. A legal separation lets a married couple unsure as to whether they want a divorce to live separately and see if the marriage can be resuscitated. Neither of the spouses is able to remarry while the legal separation decree is effective.
  • In a legal separation, the judge will review and decide all of the rights and responsibilities for each spouse. A judge may grant the petition for a legal separation and may also award temporary child support and alimony. The court may also determine arrangements for the custody of children and make similar other orders to those when a final divorce is entered.
  • If a judge grants a legal separation, it doesn’t prohibit either spouse from seeking a divorce, and after two years, a legal separation can become an acceptable basis from which to seek a divorce.
  • Whatever earnings are made during the legal separation don’t constitute marital property. If the parties divorce, these earnings won’t be included in a subsequent divorce action.

Separate Maintenance

  • Separate maintenance is different from a legal separation in that a spouse who requests separate maintenance doesn’t have to prove that he or she has the grounds to obtain a final divorce—it’s all within the discretion of the judge.
  • Separate maintenance can be requested by a spouse when a husband and wife are living apart and—through no fault of the requesting spouse—the other spouse doesn’t give him or her support.
  • The amount of the award is based on the other spouse’s income and the requesting spouse’s needs and those of any minor children.

Divorce Preliminaries

  • In Alabama, either spouse is permitted to initiate the divorce proceedings, but he or she must satisfy the Alabama county residency requirements in order to file a divorce complaint. As mentioned above, in Alabama, a legal separation can transition to divorce. In some cases, the couple is able to agree on the terms of the divorce. They deal with the split of property and child custody, which saves a lot of time and money. This is called an uncontested divorce.

Uncontested Divorce

  • In an uncontested divorce, the couple (and their attorneys) settle on all of the terms of the divorce, such as the division of property, alimony, child custody and support. When everything is ironed out and the parties agree to all of the terms, their attorneys will draft a written settlement agreement. One spouse will submit this agreement along with the divorce complaint to the circuit court in the county where the other spouse resides. A circuit court judge will review the settlement agreement. If the judge approves the agreement, it will become part of the divorce decree.

No-Fault Divorce

  • In a no-fault divorce, the spouse filing for divorce isn’t required to show that the other spouse was in some way at fault or did something wrong.

Mediation

In the event that negotiations get hung up in an uncontested divorce, the parties may hire a mediator to help them decide the issue. A mediator is an independent party. He or she will discuss the issues with each spouse and try to work out an agreement for the benefit of both parties

  • Unfortunately, most couples at this stage do not see eye-to-eye on a lot of things. That may be one reason for the impending divorce.
  • When all (or none) of the issues can be resolved through mediation or settlement negotiations, one party will file and serve a divorce complaint. A trial date will be set. Most judges will require the couple to attend one or more settlement conferences before the trial in an effort to work out the issues and avoid further expense and delay.
  • When the parties contest the terms of the divorce, there is the potential for one or more hearings in front of a circuit court judge to hear testimony in order for the judge to render a final ruling and issue the divorce decree.

Drafting Divorce Pleadings


 Residency Requirement

  • In order to file for divorce in Alabama, one of the spouses must have been a legal resident of the state for at least six months prior to the filing of the divorce complaint.
  • A divorce in our state is started by the filing of the Complaint and Summons, which are the initial divorce pleadings. The complaint is the formal request a divorce to the state court by a plaintiff. The complaint will detail things such as the grounds for the divorce, a proposed division of property, alimony, and the care and custody of any children.
  • Alabama law says that there is a 30-day waiting period after filing of a divorce complaint before a divorce can become effective.
  • In addition to filing the divorce complaint with the proper circuit court, the plaintiff must give a copy of the complaint to the defendant. The defendant doesn’t have to verify the Answer or Response to the complaint by oath. [See Serving the Divorce Complaint below.]

Divorce Complaint

The divorce complaint again is the legal document or pleading that a party is required to file with the court to initiate a divorce. There are several pieces of important information that must be contained in the complaint. It must include the following:

  • The plaintiff and the defendant’s name and address;
  • That both parties are at least age 19;
  • The plaintiff has resided in Alabama for the previous six months;
  • The date and location of the couple’s marriage;
  • The grounds for the divorce;
  • Any children’s names, dates of birth, and social security numbers;
  • The date the parties separated and began living apart; and

A certified copy of the couple’s marriage certificate must be attached.

The Response or Answer

The Response requires that the defendant also provide information about the length of the marriage and other basic information about the relationship of the couple. The response must include the following:

  • A list of the property that the couple owns;
  • A list of debts or liabilities; and
  • Answers to questions about:
  • Child custody and visitation;
  • Child or spousal support;
  • Domestic violence; and
  • Other matters.

A defendant only has 30 days to file his or her response, and the days are typically counted from the date he or she was served with the divorce complaint. In some cases, the court will allow additional time to respond. This is called an “extension.”

Grounds for Divorce

In a contested divorce, the plaintiff must state that his or her spouse did something wrong, causing the plaintiff to seek a divorce. This must be one of the legally recognized reasons. Alabama recognizes these grounds for divorce:

  • Adultery or voluntary abandonment for at least a year prior to filing for divorce
  • Imprisonment for at least two years and with a sentence of at least seven years
  • The commission of a crime against nature, either before or after marriage
  • While married, becoming a drug addict
  • An irretrievable breakdown of marriage as defined by the judge
  • Confinement during the marriage to a mental institution for at least five years
  • The wife was pregnant at the time of marriage without the husband’s knowledge and/or he was not the father of the child
  • One spouse committed violence against the other
  • The couple has lived apart from each other for at least two years and resided in Alabama during that time

Filing the Divorce Complaint

The complaint for divorce should be filed in the circuit court of the county in which the defendant (the spouse who is not requesting the divorce) resides or in the circuit court of the county in which the parties lived when they separated. If the defendant is a non-resident, the complaint may be filed in the circuit court of the county in which the plaintiff (the spouse requesting the divorce) resides. Each circuit court will have a family law department or division where divorce complaints are filed.

In addition to filing a divorce complaint, a plaintiff can also file a Protection from Abuse (PFA) petition in the county to which he or she is now residing in order to seek safety from an abusive spouse.

The county court clerk can determine if there are any additional forms to be filed and fees required to be paid when filing a divorce case. Generally, a plaintiff must have (i) an original and two copies of the complaint which is to be stamped by the court clerk; and (ii) a filing fee. Some Alabama counties may have other paperwork or additional requirements.

Serving the Divorce Complaint

As mentioned above, the plaintiff must give the defendant a time-stamped copy of the complaint. This process is call serving the complaint. This service doesn’t have to be in person, and doesn’t have to be the filing spouse who serves the complaint.

A plaintiff can provide the other spouse with a copy of the complaint in any of these ways:

  • Service by Publication
  • In some circumstances, service by publication is needed.

Filing an Answer to a Divorce Complaint

When the defendant receives the plaintiff’s divorce complaint, he or she will typically file an answer. The defendant has 30 days to file his or her answer. This is the legal response to the complaint which is filed with the court. The plaintiff, through his or her attorney, will also receive a copy of the answer.

If the defendant files an answer, the case will be set for trial as a contested divorce. The parties still have the ability to reach a settlement and negotiate the terms of the divorce before the trial begins.

Divorce Judgment by Default

If the defendant doesn’t file an Answer within the 30-day time limit, the plaintiff is entitled to file a Request for Divorce Judgment by Default. If the plaintiff isn’t requesting property to be divided and there are no children, the court may enter a judgment without a hearing.

Default Hearing

If the plaintiff requests that the judge in the case divide property or make a determination as to child custody, the court will hold a default hearing. The judge will determine at the hearing if the plaintiff has sufficient grounds for a divorce. If so, the judge will finalize the terms of the divorce. This will include property division, child custody, child support, and alimony.

The plaintiff is required to make his or her best efforts to notify the other spouse of the hearing. After a judge makes a decision at the hearing, the other spouse has 30 days to file a motion to overturn the default judgment.

 

Protection Orders, Restraining Orders, and Temporary Restraining Orders (TROs)


Protection Order for Domestic Abuse

A judge will sign a protection order in a case of domestic abuse. The judge typically orders the abusive spouse to stay away from the domestic violence victim. A judge also has the authority in such instances to go ahead and grant the victim custody of the couple’s children, child support, spousal support, possession of the home, possession of a vehicle, and other relief as he or she sees fit.

Restraining Order

A restraining order is also known as a “TRO” or temporary restraining order. In a divorce action, a circuit court judge has the discretion to sign a TRO as part of a case in order to prevent one of the parties from carrying out certain actions or behaving in a specific manner. This order is frequently imposed in an emergency to prevent something from occurring before the judge is able to hold a hearing. In divorce actions, the judge may issue a TRO granting relief identical to that of a protection order. This may again be a case of domestic violence where the judge orders the abuser to keep clear of the victim to protect that party and keep him or her safe. This type of order is also granted to protect children in a divorce proceeding.

TROs or restraining order that continue to be in force beyond a preliminary hearing are sometimes known as Preliminary Injunctions. A TRO that continues to be in effect after the case is decided is termed a Permanent Injunction. The public usually just calls all of these types of orders “restraining orders.”

Additional Alabama Divorce Forms

The court may ask the parties to complete a Vital Statistics Form, an Affidavit of Residency, and a form entitled Testimony of Plaintiff.

If the couple has children, they will be required to complete a Child Support Guideline Notice of Compliance, a Child Support Guideline Form, a Child Support Obligation Income Statement, a Child Support Information Sheet, and certificates of attendance for any mandated training or counseling seminars.

Financial Disclosures in Divorce

The circuit court judge may require both parties to make financial disclosures. In such a case, the plaintiff and the defendant will both be required to submit copies of documents that relate to these topics:

  • Income, assets, and debts or liabilities;
  • Income tax returns, bank statements, and credit card statements;
  • Personal financial statements; and
  • Other types of documentation or evidence that relates to relevant financial information.

Court Hearing

If the defendant files an Answer or the plaintiff has filed for default judgment, the plaintiff is required to attend a court hearing. The judge will make a final decision on all of the terms of the divorce at that hearing. The parties will be permitted to present witnesses and evidence at the hearing to substantiate their case.

Judges prefer not to have hearings in divorce cases. They like to have a pleasant resolution to each and every divorce case. To that end, they will attempt to schedule one or more pre-trial conferences to give the parties a chance to again resolve their differences and to reach an agreement.

But if the parties can’t agree, the judge will make these determinations:

  • The equitable division of property;
  • Alimony;
  • Custody and visitation arrangements; and
  • Child-support.

Property Settlement

It is often said that when both parties believe that they gave up a significant amount, the settlement is most likely a fair and equitable one.

The State of Alabama is an equitable distribution state, which means that all of the assets and liabilities are divided fairly. This doesn’t always mean a straight 50-50 split. Rather, the property that each spouse owned prior to the marriage is given to that person. The remaining property from the duration of the marriage is divided as fairly as possible, according to the trial judge.

In a divorce action, the judge may examine how much each spouse earns, their earning potential, and the value attributed to one spouse staying at home with children (if there are any) to assist the judge in deciding the most equitable way to divide property. The judge has the authority to order one spouse to give or transfer interests in stock, vehicles, or real property to the other spouse as part of the division of property.

Again, even in a contested divorce, the judge will encourage the parties to negotiate and come to an agreement as to the division of their marital property. The divorcing couple is the most familiar with their property, so the judge may want them to try to work out a division of assets that is satisfactory to each party and incorporate this agreement into the divorce decree. The judge isn’t required to uphold their property division agreement, but most will put a lot of stock into what the couple has worked out.

If the parties can’t come to an agreement, the judge will make the division based on the needs and interests of the parties based on the evidence and testimony presented at the trial.

While the property settlement is supposed to be a fair and equitable one, sometimes the results of the agreement are discovered only after a party has time to live with the changes for a while. In some instances, the division of property between the husband and wife and awarding of alimony and child support payments can cause a real issue with unexpected tax consequences. With her years of experience, Charlotte can avoid this for her clients with advance planning.

If there is an issue or something needs to be changed, Charlotte can petition the court for a modification of the agreement.

 

Child Custody And Visitation Rights


Custody

The judge will decide custody and visitation issues of the minor children of the couple in a divorce action. This determination is based on the judge’s review of factors such as:

  • The best interest and welfare of the children;
  • The fault of the parties;
  • The character and conduct of each parent;
  • The age and gender of the children;
  • Past care and custody of the children;
  • The financial condition of each of the parents;
  • The emotional, social, moral, material, and educational needs of the child;
  • The home environments of each parent;
  • The parent’s stability, and mental and physical health;
  • The capacity and interest of each parent to provide for the needs of the child;
  • The interpersonal relationship between the child and each parent;
  • The interpersonal relationship between the child and other children in the family;
  • The effect on the child of disrupting or continuing the current custody situation;
  • The reports and recommendations of expert witnesses or independent investigators
  • The children’s preference (if he or she is old/mature enough to give such opinion);
  • The agreement of the parents; and
  • Any other relevant information given in evidence.

Charlotte also knows that future parenting of the children is an extremely critical factor in the judge’s decision. Clients should inform her of all of the relevant information that might impact the judge’s child custody decision.

Awarding Custody to Others

Courts in Alabama typically choose to grant physical custody of the child or children to a natural parent. However, the judge can award custody to other individuals like the child’s grandparents, aunts and uncles, or even someone who is unrelated if the judge determines that it’s in the best interest of the children.

Child Visitation

The parent who isn’t granted custody of the children and doesn’t have them living with him or her is known as the “non-custodial parent.” This parent has the right to visit the children at their home or another location, or have them visit him or her at the non-custodial parent’s home.

The visitation rights are typically decided upon and approved by the judge. Visitation is usually described in terms of reasonable times and places at a reasonable notice. However, the divorce degree can also spell out some exact and specific visitation scenarios for certain times and places. For example, every other weekend and Wednesday nights, specific holidays, school breaks, and summer vacation.

 

Financial Support and Divorce


Alimony

The judge in a divorce action has discretion to determine if limited alimony is required in order to assist a long-term, economically-dependent spouse find a position in the job market. Alimony is frequently awarded for a set period of time. The judge may consider these types of factors when making this decision:

  • Standard of living;
  • Earning power;
  • The duration of the marriage; and,
  • Where fault is determined, the misconduct of the offending spouse.

The judge can order a spouse to pay alimony before the divorce is finalized.

Although alimony was traditionally give to a wife after a divorce, today either a husband or wife may be entitled to alimony if the judge concludes that one spouse needs that financial support and the other spouse has the ability to pay. There are two types of alimony—temporary and permanent.

Temporary Alimony

Temporary alimony is awarded to the party in need for the period of time after a divorce suit is filed until trial or final decision by the court.

Permanent Alimony

Permanent alimony is the dollar amount that the judge awards in the final divorce decree. There are also two types of permanent alimony: it can be in gross—which is a fixed total amount that isn’t allowed to be altered; or periodic, which is an amount payable on a regular basis without a fixed total. Periodic alimony can be modified in some situations.

The award of alimony and the amount are at the total discretion of the trial judge.

Alimony is separate and distinct from the division of assets between the parties. Nonetheless, courts as a practical matter will often find a relationship between the two topics, as many of the same factors are used to determine property settlements.

Child Support

As a part of the divorce proceedings, the judge will determine the amount of financial support that the non-custodial parent will be required to pay for the couple’s children. The judge will factor in the needs of the child and the parent’s ability to earn and pay a certain amount. The judge will apply the state’s Child Support Guidelines to decide how much the non-custodial parent is to pay. In making this calculation, the judge will also consider the total income of both parents and the number of children. The court will adjust the amount for work-related child care expenses and health insurance premiums. The judge may deviate from the guidelines if he or she believes that adhering to them would be unjust and inappropriate.

Charlotte will tell you that Alabama courts see the most important factors to be considered in making an award of child support are:

  • The needs of the children; and
  • The parent’s ability to earn and pay his or her portion of the support.

The judge may base a parent’s child support obligation on his or her demonstrated ability to earn a certain amount of money, instead of that parent elects to earn. For example, a cardiac surgeon cannot escape his or her obligation of child support by taking a job at a fast food restaurant.

Child support is typically paid by the non-custodial parent until the point when the child reaches the age of majority. However, child support obligations can be extended beyond that time in some situations, like paying for the child’s college education or in the event that the child has special needs, such as being mentally or physically disabled.

Final Judgement

When the judge decides all of the issues in the case, he or she will issue a final order of divorce, also known as a divorce decree.

The divorce decree will be the legal document that contains all of the terms of the divorce—both parties are required to follow its directions and agreements. The divorce is official and final when the divorce decree is signed by the judge and is issued.

 

Top Mistakes in a Contested Divorce


In many instances, a couple that is divorcing will concentrate only on current problems and benefits, instead of looking at the long-term effects of their decisions. In fact, some people want to end the marriage so badly that they won’t even stop to talk about the benefits and drawbacks of their actions and decisions.

With that cautionary tale in mind, Charlotte provides some of the mistakes that people often make in a contested divorce. Some are obvious, but unless and until you’re in that situation, you never know how you’ll act and react. Consider the following:

Getting Your Legal Advice from Friends and Neighbors

The divorce advice that should be heeded is the expert legal advice you’re paying for.  It’s wonderful to have friends and family who want to help and who mean well; however, just like flying a commercial airplane or rewiring the electrical outlets in your home, it’s best to leave this to a professional. Charlotte is your best source for advice and information on legal issues, not your stylist or your plumber.

Not Protecting Your Interests

If you go through the divorce process and permit fear or guilt to make your decisions, you will end up with very little and lacking the resources you will need to move forward. A lack of confidence may mean that you don’t (and didn’t during the marriage) share your own opinions and don’t advocate for yourself. That won’t happen with Charlotte Christian on the case:

Charlotte will stand in your corner and make certain that your interests are considered and protected, so that you can get the new beginning you deserve and are able to start the next chapter of your life off right.

Blaming the Ex in Front of Your Children

Slamming or disrespecting your ex to your kids — even though it may be totally accurate and regardless of how much you would like to do it—only creates additional stress and emotions for your children. Such comments and lack of civility can lead to their added confusion, guilt, insecurity, anxiety, depression, and pain.

When you put down your spouse to you child, you’re trashing his or her mother. In effect this is seen as putting them down as well. Don’t let your frustration, anger, bitterness, or offhand comments have a negative impact on your children and your relationship with them.

Your kids will figure out if your ex is not a nice person. There’s no need for you to prove it to them. The only thing that your negative actions and comments will do is create more pain for the children. Be the grown-up in the room and don’t force the kids to take sides or to prove their love to you by defying the other parent.

Failing to Keep Your Emotions in Check

People can get into the same emotional arguments with their exes time and time again. This can be about anything—the division of property, paying the phone a bill, changes to the custody schedule, or even not replying to a request quickly enough. But in reality, getting their way on this specific issue may not be important. It’s more of the idea of giving in to their spouse’s demands. This type of resolve can be detrimental to the entire divorce process. Emotions can make folks “stick to their guns” even if it means added stress, more anger, and additional drama.

You’ve probably heard the expression, “Nobody wins in a divorce.” While that is certainly true, it doesn’t stop many couples from trying to be the first ones to be victorious. It’s not a game of revenge at any cost, and no one really keeps score. Letting it all hang out emotionally can not only create an acrimonious environment, but it can also jack up the final price tag on the costs of the divorce and decrease what’s left with which to move forward with your life. Stay calm.

Failing to be a Co-Parent

Divorce changes your marital status, but your parenting status is the same. Being parents to your children is a full-time commitment during and after the divorce process. Some parents try to be “helicopter parents” (who hover and are over protective) or “a Disney parent”—the noncustodial parent who indulges the child with gifts and fun outings during visitation and leaves the disciplinary responsibilities to the other parent. These types of behaviors only cause more issues for the child. With all of the effort that parents put into their relationship with their children, there should be some consideration for the evolving relationship with the ex. If there is a more cordial relationship between the parents, it only benefits the child and alleviates the need for him or her to feel loyalty to one parent while with him or her at the expense of the other parent.

Failing to Plan for After Your Divorce

When in the midst of a divorce, you need to consider important financial decisions and long-term issues like selling the home, investment strategies, and purchasing life insurance. Charlotte has experience with this and can guide you through the process with stops along the way to consider these important questions. Creating a financial plan is a great idea and can help provide some clarity as to your financial goals, your liabilities, income, and expenses. This can really help you create a reasonable budget to manage your money while thinking of your future.

On the Rebound Too Quickly

With all of the stress and bitterness that can come with a divorce, it’s easy to think about going out and having some fun. However, you should use caution in your new love life. Take some time to heal and take stock. Remain focused on the task at hand.

Divorce is such a stressful experience that it’s logical for a person find a new emotional connection and a new romantic relationship. But you’re not ready, and your kids definitely aren’t ready for a “new parent.”

Failing to See the Big Picture

A divorce settlement has a lot of moving parts. Don’t get hung up on one bolt and miss a larger part of the equation. Because of the fact that many folks will concentrate on just one or two areas, rather than the big picture, Charlotte will make certain that all of your interests are covered.

Likewise, many couples will make the mistake of fighting to the near death about who gets the coffee maker or the dishwasher. But remember, you can be happy or you can be right—not both. A lot of time and money can be wasted on small skirmishes, when it’s the battle for a fair settlement that’s really the issue. Help Charlotte with this and focus on the overall, not the Barry Manilow record collection.

Failing to Stay Involved with Your Case

It’s true that some complex divorce cases can take on a life of their own and go on for months and months—maybe years. That said, you need to stay on top of the developments in your case by keeping in contact with Charlotte.

Of course, you don’t need to have the distinction of being the client who calls Charlotte everyday to see what’s happening in the case. On the other hand, it’s not a good idea to go off the grid and forget about the important work that needs to be done to get the divorce action settled. Somewhere in between would be good, and Charlotte will be sure to get in touch with any orders from the court or communications from the other party. Do what you can to help Charlotte and she will do her absolute best to move the case through the system and negotiate with your spouse to get this settled.

Telling the World Your Divorce Details on Social Media

We love to tweet and post, but uploading a photo or making a comment about your divorce, your girlfriend, finances—you name it—on Facebook or Twitter could be used against you in court. Don’t update your status to “Single,” and don’t post pictures that could in any way be used against you in your divorce proceedings. Play it safe and if in doubt, post nothing but kittens.

 

[Page Updated on February 9, 2017 by Charlotte Christian in Divorce]