Thomas A. King, P.C.
128 South 8th St.
Gadsden, Al  35907
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Domestic Law

Divorce Grounds for Divorce Child Support
Alimony Child Custody Visitation

Division of Assets and Liabilities

 

DIVORCE

            To get a divorce in Alabama, you have to satisfy the requirements for jurisdiction and residence. Basically, that means that at least one of you must have lived in Alabama for six months.   Similarly, the divorce must be filed in the right county (venue).  If youíre the one filing the divorce, you can file in the county where your spouse lives, or in the county where the two of you lived when you separated. If your spouse doesnít live in Alabama, you have to file in the county where you live.

 Grounds for divorce

            You really don't need to spend much time worrying about the grounds for divorce in Alabama. There are several grounds for divorce set out in the statute -- but most of them require a finding of fault on the part of one of the parties -- things like adultery, abandonment, habitual drunkenness or drug use, or violence against the spouse.

            Most divorces now are granted on the "no fault" grounds of incompatibility and irretrievable breakdown. The important question in this area usually revolves around whether the divorce will happen -- that is, if one of spouses wants the divorce and the other wants to stay married, can one of you keep the divorce from happening? The short answer is no. A spouse who opposes a divorce can make it take longer, make it hurt more, and make it cost a lot more, but neither spouse can keep a divorce from happening if the other spouse is determined to divorce.

 CHILD SUPPORT

             A divorce decree must provide for the support of minor children.  The parties may not agree to waive the right to support, and an agreement so providing is not enforceable.  Support normally continues through the age of majority(19) or emancipation, whichever first occurs; however, children who are incapable of self-support due to a mental or physical handicap may be entitled to support so long as the divorce is filed prior to the attainment of the age of majority.   Additionally, as of 1989, parents may be required to provide post-minority support for college education so long as the action seeking same is filed before the child attains the age of majority.  This award is discretionary with the court, taking into consideration the financial resources of the parents and the child, the child's commitment to and aptitude for college education, the standard of living the child would have enjoyed absent the divorce, the child's relationship with the parents, and the child's responsiveness to parental advice and guidance.  The extent of the parent's obligation is normally defined as including tuition, books, fees  and room and board. The Court of Civil Appeals has mandated that a trial court must set reasonable limitations on the parentís postminority-support obligation, including a time period, a grade requirement and student status requirement (i.e., full time).

             The method of determining the appropriate amount of child support was drastically changed when the Alabama Supreme Court adopted Rule 32, Alabama Rules of Judicial Administration, commonly known as the "child support guidelines".  Rule 32 provides a method of computing child support and creates a rebuttable presumption that the amount resulting from the application of the guidelines is the correct amount of child support to be awarded in both divorce and modifications of child support.  Evidence establishing that the application of the guidelines would be manifestly unjust or inequitable would be sufficient to rebut the presumption.  If the child support award does not comply with the guidelines, the practitioner should demonstrate a reason for deviation from the guidelines that results in a benefit flowing to the child, such as the non-custodial parent's payment of mortgage payments on the home in which the child resides or an agreement to pay for certain non-curricular activities for the child on a regular basis.

             Child support can be modified at any time during the minority of the child.  Modification is appropriate in many situations, both upward and downward.  The non-custodial parents' negative financial change can be grounds for a downward modification of the support. Prior to the 1993 amendments to the guidelines, one clearly had to show a material change of circumstances in the needs, conditions and circumstances of the children in order to modify child support focusing upon their advancing age and the cost of living occasioned by inflation and an examination of the payor's ability to meet the needs of the children.  However, the amendments provide that the guidelines shall be applied to child support modifications and create a rebuttable presumption that support should be modified when there is more than a ten per cent difference between the existing support and the amount determined by the application of the guidelines.

             The guidelines operate as a sliding scale of child support obligation based on the parties' combined incomes and number of children.  The first applicable factor is the parties' gross income.  It is important to note that the parties' ability to earn and not his or her actual earnings controls on the issue of that parties' true gross income.  Thus, the court may use the previous earnings of a person who quits a job for the purpose of avoiding child support.  Gross income includes money from any source and includes earnings, both regular and overtime, interest or dividend income, severance pay, etc.  There are two deductions to gross income recognized by the guidelines: payments of periodic alimony or child support under a preexisting order in another case.  The guidelines permit the court to deduct for "imputed preexisting child support."  Where there are children from a current marriage, case law allows (but does not mandate) the judge to deviate from the guidelines.  Once these deductions are made, the chart provides a child support figure for parties at their combined incomes and number of children.  One then divides the adjusted income of each party by the basic child support obligation to get a percentage for that party.  Net child care cost is added to this basic child support obligation.  This is not the actual child care cost, but, rather, comes from standards adopted and changed from time to time by the Department of Human Resources.  The amount to be used for day care expense incurred due to employment or search for employment is the lesser of the actual cost or the amount allowed by the DHR standards.  To this is added the actual cost of health care insurance which covers the minor child. One then applies the percentages obtained to the total child support obligation (the total of the basic obligation, day care and health insurance).  If the payor provides health insurance for the child, that amount is deducted from his or her child support obligation.  If not, the figure obtained by application of the percentages is the payor's obligation.  

             Payments of child support are not taxable income to the recipient nor are they tax deductions for the payor.  Child support obligations are not dischargeable in bankruptcy. 

             The court may also order that the child be covered by health insurance by at least one of the parties and that the non-custodial parent keeps life insurance in place during the child's minority with the child named as the irrevocable beneficiary.  

  ALIMONY

              There are two kinds of alimony in Alabama, one constituting support of the spouse and the other representing a property settlement between the spouses.

            The purpose of periodic alimony is to preserve the economic status quo of the parties as it existed during the marriage, where possible. It is available to both sexes when warranted.  Payments of periodic alimony are taxable to the recipient and deductible for the payor if they meet certain requirements:  payments must be in cash; payments are made under a written divorce or separation order or agreement; payments are made to or in behalf of a payee spouse; payor and payee spouse are not members of the same household; payment obligation of payor spouse terminates on death of the payee spouse; and the order or instrument does not eliminate the tax consequences of the payments.  The determination of the amount of the award is discretionary with the court; however, case law has given us certain standards to evaluate:  the standard of living during the marriage; the parties' future prospects; the parties' potential for maintaining their standard of living after their divorce; the parties' ages; the parties' health; the length of the marriage; the source or sources of their common property; and the conduct of the parties with reference to the cause of the divorce.

             As a practical matter, periodic alimony is generally awarded in a lengthy marriage where one party stayed at home for a good portion of the marriage developing few or no job skills.  Ala. Code '30-2-51 (1975) requires an evaluation of the separate estate of the party requesting alimony to determine whether it is insufficient for his or her maintenance.  The payor's  separate estate is only taken into account when it has been commonly used by both spouses during the marriage.  Many courts and practitioners have used the concept of "rehabilitative alimony" to provide periodic alimony for a specific period of time in order to allow the payee spouse to "get back on his or her feet" and become self-supporting.  This may be appropriate when the payee needs to update his or her certifications or licenses or look for a job. The practitioner needs to ensure that the decree or agreement clarifies this intent to limit the periodic payments to a specific amount of time.  In order to retain the same tax treatment, this alimony must be subject to the same terminating events as above.  Many jurisdictions have informal "rules" for determining the amount of alimony

             A material change in circumstances of one or both parties may warrant an increase or decrease in the amount of periodic alimony.    However, the voluntary change in income status by the payor does not necessarily warrant a reduction, as the issue is ability to earn and not actual earnings. Periodic alimony terminates upon the recipient's remarriage or cohabitation with a member of the opposite sex.  Periodic alimony is also terminated at the death of either party.  By case law, alimony may be terminated upon the attainment of self-support by the recipient.  Periodic alimony obligations for support are not dischargeable in bankruptcy.

             Alimony in gross is part of the property settlement of the divorce and is designed to compensate the recipient for the loss of inchoate property rights in the spouse's estate and constitutes a termination of the parties' property rights.  In order to be classified as alimony in gross, the amount and time of the payment must be certain, and the right to the payments must be vested and not subject to modification.  It may take the form of a lump sum payment, a number of payments over a specified period of time, or both.  Alimony in gross is part of the property settlement and, thus, is not modifiable in subsequent proceedings.  However, alimony in gross is subject to discharge in bankruptcy.  Thus, the practitioner may want to reserve the issue of periodic alimony even when an award of same is not contemplated in order to provide a mechanism to protect the recipient in the event that a bankruptcy is filed.  The court should consider the following when awarding alimony in gross:  earning abilities of the parties, their probable future prospects, the source of the marital property, the contribution of each to its attainment, the duration of the marriage, the extent of the offending party's fault and the compensation to the recipient for the loss of future support and statutory inchoate property rights.  Examples of situations warranting alimony in gross include an ongoing business run by one party where its value is dependent on his or her continued management.  The other spouse may receive payments over time to compensate him or her for the marital interest.  This is not support but, merely, termination of the business interest and compensation therefor.  Alternatively, when a home was owned by one party but substantially improved during the marriage, the other party may be compensated for that improvement value.

 CHILD CUSTODY 

            Custody of children denominates care, custody and control. There are different types of custodial arrangements.  One parent may be named the custodian parent with the other party having visitation rights.  Parents may share parental responsibility for decision making regarding the children.  Joint physical may occur where the parties may more equally divide residential time.  A joint custody arrangement may rotate physical custody week to week or month to month.  Custody is initially decided in the divorce proceeding or in a proceeding ancillary to the divorce proceeding.  Ala. Code '30-3-150, et. seq., mandates the courts consider some form of joint custody in all cases.  The critical word is consider - it does not require joint custody but, rather, simply directs that the courts consider it. The Court is still directed to award any form of custody considered to be in the best interests of the child.  This law was effective January 1, 1997, and, also, provides both parties access to all medical and school records of the child.  If circumstances change after the initial custodial determination, then the court may modify the custody arrangement in a post-divorce modification.  The standards for awarding custody in a divorce proceeding and in a post-divorce proceeding differ.

         A.     DIVORCE

            In the past, a mother enjoyed a rebuttable presumption that it was in the best interest of children under the age of seven to be with their mother.  This doctrine was abolished in 1981 by Ex parte Devine, 398 So. 2d 686 (Ala. 1981), which established twelve elements to be considered in analyzing the issue of custody.  Those twelve elements are as follows:  the sex and age of the children; the characteristics and needs of each child, including their emotional, social, moral, material, and educational needs; the respective home environments offered by each party; the characteristics of those seeking custody, including age, character, stability, mental and physical health; the capacity and interest of each parent to provide for the emotional, social, moral, material, and educational needs of the children; the interpersonal relationship between each child and each parent; the interpersonal relationship between the children; the effect on the child of disrupting or continuing an existing custodial status; preference of the child, if the child is of sufficient age and maturity; the report and recommendation of any expert witness or other independent investigator; the available alternatives; and any other relevant matter which may be present.  The courts in Alabama have held that, in applying the above factors, past performance should determine future capability.  The analysis is sex neutral. The general standard is what is in the best interests of the child.  This generally is a common sense approach to determining who has the nurturing relationship with the child, who is better equipped to care for the child and other practical concerns.  Several factors may be important.  The affection which exists between the parent and the child must be considered.  The circumstances leading up to the divorce may also be important in the custody determination.  For example, the determination that one party was at fault in the termination of the marriage may be pertinent in making the custody determination.   Moreover, while adultery is not, in and of itself, determinative of the custody issue, it is one circumstance that should be considered in making the determination.  Particularly relevant is evidence showing that acts of immorality by one spouse may have had a detrimental effect on the child.  The question is not merely was there sexual activity, but rather, did the presence of sexual activity by one spouse have a detrimental effect on the growth of the child and detract from a stable and worthwhile living environment for the child.  Other misconduct may also be considered by the court in determining the issue of custody.  If one parent is guilty of physical or mental cruelty to the parent, this may be considered in determining custody.    However, this circumstance is not determinative of the issue.  The fact that a spouse has severe mental or emotional problems may weigh heavily in the custody determination.  If both parents exhibit psychological problems, the fact that one parent sought professional care while the other refused care is relevant to the determination of custody.  While the financial well-being of both parents is relevant, it is pertinent more to the issue of whether the parent is responsible rather than whether the parent can provide for the child.  The fact that one parent removed the child to another state without the other's consent in order to raise the child away from the other parent, weighs heavily against the removing parent's custody request. 

             The court may not permit religious or racial considerations to control an award of custody.  However, the Supreme Court of Alabama has held that while a court cannot condition an award of custody upon a parent's attendance at religious activities, the parent's involvement in religious services or activities may be relevant, just as the parent's involvement in civic organizations or other activities. The involvement may have an effect on the welfare and best interests of the child.

             The Alabama Legislature passed a law in the 1995 Session called the Presumptions Against Custody Act. Ala. Code '30-3-131.  It provides that a determination by the court that domestic or family violence has occurred raises a rebuttal presumption that is detrimental to the child and not in the best interests of the child to be placed in sole custody, joint legal custody or joint physical custody with the perpetrator of domestic violence.  The court is further directed to take into account what, if any, impact the domestic violence has had on the child.  It has sweeping provisions that help a custodial parent where domestic violence has occurred.  If the parent relocates because of an act of domestic or family violence by the other parent, the absence or relocation may not be a factor that weighs against the parent in determining custody. 

              B.   POST-DIVORCE MODIFICATION

              It is more difficult in a post-divorce modification proceeding for the non-custodial parent to be awarded custody.  In a post-divorce modification of custody, the general standard of proof required is outlined in Ex parte McClendon, 455 So. 2d 863 (Ala. 1984).  The parent seeking to change custody must meet a stringent and heavy burden showing that the change of custody would materially promote the child's best interests and welfare sufficient to overcome the inherently disruptive effect caused by uprooting the child.  The McClendon standard is a rule of repose and condemns frequent disruptions in the lives of children whose welfare is paramount.  This standard also applies when there is a shared custody arrangement with a primary residential parent. The petitioner must prove initially that a material change in circumstances has occurred since the last decree and that a change in custody would promote the child's welfare and best interests.  The standard for modifying a shared custody arrangement may differ when there is no primary custodial parent.  In that situation, the standard for modification is not as stringent and is outlined in Ex parte Couch, 521 So. 2d 987 (Ala. 1988).  In Couch, the parents rotated physical custody of their children from week to week.  The court held that a best interests and welfare of the children standard applies when custody has not been awarded to one parent primarily and both parents have been held to be fit and proper persons to have custody. 

             In any proceeding where there is an issue regarding the modification of custody of the child, a finding that domestic or family violence has occurred since the last custody determination constitutes a finding of change of circumstances pursuant to the Presumptions Against Custody Act.

 VISITATION

             The trial court has broad discretion in determining visitation rights of a non-custodial parent, and must consider the child's best interests and welfare.  Restrictions on visitation may occur where there are dangerous situations existing in the home of the non-custodial parent, such as mental instability or physical abuse.  Most jurisdictions have standard visitation periods for parents graduated in time with the increasing age of the child and have separate standards for out of state visitation.  It is important for the attorney to explain that one cannot withhold visitation privileges for failure to pay child support and vice versa.

             The Presumptions Against Custody Act provides that a court may award visitation to a parent who has committed domestic or family violence only if the court finds that adequate provisions for the safety of the child and the parent who is a victim of domestic or family violence can be made.  It allows the court to take certain specified actions in a visitation order to supervise the visitation, ensure that it occurs in a protected setting, to require counseling, to prohibit overnight visitation, to require a bond from the perpetrator for the return and safety of the child, and other important relief.

 DIVISION OF ASSETS AND LIABILITIES

             Alabama courts have discretion to divide the parties assets in an equitable manner.  Thus, a property settlement does not have to be equal so long as it is equitable.  Ala. Code '30-2-51 (1975) provides:

             If the divorce is in favor of either spouse for the misconduct of the other spouse, the judge trying the case has the right to make an allowance to either spouse out of the estate of the other spouse, or not make an allowance as the circumstances of the case may justify, and if an allowance is made, the misconduct of either spouse may be considered in determining the amount; provided however, that any property acquired prior to the marriage of the parties or by inheritance or gift may not be considered in determining the amount. Ala. Code '30-2-52.  Once a property settlement is made either by agreement or by court order, it may not be modified.

             Many factors may come into play when dividing the marital assets and liabilities, including, but not limited to, the source of common property, ages, sex and health of the parties, parties' future prospects and station in life, length of the marriage and conduct of parties in causing the divorce.  A court can take into account the custody of children when dividing assets such as the home.  Items of personalty or cash which were the separate property of one party by ownership prior to the marriage or by inheritance may become commingled during the marriage, making them divisible equitably in the divorce.  It is critical that your client provide to you a complete listing of both assets and debts, as a divorce decree needs to provide for a division of all of the parties' assets and direct who will have responsibility for each of the parties' debts.   Often your client will not have this information either because (s)he has no access to same or because (s)he does not understand the information. It is incumbent on the attorney to assist the client in this process by using the discovery process and/or by utilizing informal means to obtain this information. Where there are mortgages on real property, it is important to ascertain the use to which these funds were put.

             One must remember that the parties' creditors are not parties to the divorce.  Accordingly, an order directing a party to pay a debt on which the other spouse is contractually obligated does not stop the creditor from proceeding against that spouse in the event of a default.  This should always be explained to the client.  Any agreement providing for the payment of a debt on which your client is contractually obligated should contain a provision for indemnification of your client. 

             In dealing with the marital residence, it is critical to know the fair market value of the property and the balance on all mortgages.  If the parties cannot agree to a disposition of the property, the court has the ability to order the property sold and the proceeds divided in an equitable manner.  There are many options that may work to benefit your client and still effect a division of this asset by agreement where there are minor children.  The custodial parent may retain the exclusive use and possession of the residence until the attainment of majority by the children, at which time, the house can be sold and the proceeds split.  The house can be awarded outright to one party to the exclusion of the other.  If the house is to be sold in the future, it is important to establish clear time frames for this as well as a method for forced sale by the clerk or otherwise in the event that the house does not sell within a reasonable period of time.

             In 1995, Ala. Code '30-2-51 was amended to provide discretionary inclusion of certain retirement benefits within a spousal estate when the Court determines an allowance upon the grant of a divorce if certain conditions are met.  This law became effective on January 1, 1996, and the conditions are as follows:

 

            1.            The award shall not exceed 50%;

            2.            There must be at least a 10-year marriage;

            3.            No amount of the retirement acquired prior to the marriage date can be included. 

 

            This may be significant in a low-income case, as the retirement may be the only asset of significance acquired during the marriage.  

 

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This Page was Last Updated on 05/05/2004