Thomas A. King, P.C.
128 South 8th St.
Gadsden, Al 35907
Bus.:
(256) 547-1117
Fax: (256) 547-0371
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Thomas A. King, P.C. |
Domestic Law
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 you’re 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 doesn’t live in Alabama, you have to file in the
county where you live. 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.
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 parent’s 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.
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. 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. 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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Disclaimer This website is an advertisement. It contains general descriptions of Alabama law in certain areas but it is not a substitute for advice from a qualified lawyer familiar with the facts of your case. These materials are for general discussion and educational purposes only and do not constitute legal advice. Do not rely on the information presented on this site to make legal decisions. Always consult a lawyer first. The law constantly changes and the legal discussions in this site could be out of date. There is no promise or warranty that these materials are accurate, free from defects, merchantable or fit for a particular purpose. The user of these materials assumes all risk associated with their use. No attorney-client relationship is established between any user of this site and Tom A King, P.C. or any of its attorneys unless the relationship is evidenced by a written legal services agreement signed by both the attorney and the client. No representation is made that the quality of the legal services to be performed is greater than the quality of legal services performed by other lawyers. This Page was Last Updated on 05/05/2004
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