Month: January 2014

Alimony and Adultery

If My Spouse Was Adulterous, Does That Affect My Alimony?

The division of property in an Alabama divorce must be “equitable,“ which means divided in a fair and reasonable manner.  However, equitable does not necessarily mean equal.  The same is true for an alimony award.  A judge is not required to divide everything fifty-fifty.  Instead, the judge is allowed to consider several different factors when determining alimony, including:

  • earning ability of the spouses
  • future prospects of the spouses
  • age and health of each spouse
  • length of the marriage
  • spouses’ wealth, social status, and careers, standard of living, and potential to maintain that standard after the divorce
  • type and value of property each spouse possesses
  • conduct of the spouses and whether it led to the divorce

The judge is also free to consider any other factors he or she deems relevant. The “conduct of the spouses” includes adultery, if it caused the divorce.  The law in Alabama provides that a judge can make an allowance to either spouse out of the estate of either spouse, or not make an allowance as the circumstances of the case may justify, and if an allowance is made, the misconduct of the spouse may be considered in determining the amount.

Ala. Code § 30-2-52.  This statute means judges have the power to award the “innocent spouse” for being the victim when determining the amount of an alimony award.  It goes both ways, meaning that the person receiving the alimony award could get less money if he or she was the one who committed adultery.  The only real limitation is that non-marital property (property obtained before the marriage) cannot be made part of the alimony award.

On an interesting note, the Alabama Court of Civil Appeals has held that adultery committed before the marriage does not have any effect on an alimony award. Brewer v. Brewer, 695 So. 2d 1 (Ala. Civ. App. 1996).

Call our office if you have further questions, (205) 988-5570. 

Divorce Terms

Getting a Divorce in Alabama: Part IV (Terms of the Divorce)

Obtaining a divorce requires consideration of several issues.  The division of marital property and the assigning of marital debts are necessary terms of any divorce.  In Alabama the division of marital property must be “equitable” or fair.  If there are children of the marriage, then custody, visitation and child support are also important issues that must be addressed.  Many of these matters can be resolved by agreement between the parties.  Otherwise, the court must be involved.

Marital Agreement

The marital agreement is the document that sets out the terms of the divorce.  If the parties can come to this agreement on their own, a trial will not be necessary.  The agreement is instead presented to the judge, and if approved the divorce is granted.  The marital agreement is then made a part of the divorce decree.  If the parties cannot agree, a trial will be conducted and the court will determine the terms of the divorce.

Child Custody and Visitation Rights

The court determines the custody of any minor children of the marriage if the parties cannot agree. This determination is made based on the following factors:

  • best interest and welfare of the children,
  • any fault of the parties,
  • character and conduct of each parent,
  • age and sex of the children,
  • past care and custody of the children,
  • economic conditions of the parents,
  • preference of the children, and
  • any custody agreements between the parties.

There are primarily two types of custody: legal and physical.  Legal custody is the legal authority to make major decisions on behalf of the child, and physical custody determines where the child will live the majority of the time.  The parent who is not awarded custody will be given the right to visitation. 

Child Support

The non-custodial parent remains responsible for contributing to the support of the child.  The court will determine the amount to be paid, using the Child Support Guidelines adopted by the Alabama Supreme Court.  Child support is paid until the child reaches the age of majority, with only certain exceptions.

If you have any questions about divorces, child custody, support or visitation, please contact our office at (205) 988-5570.

Getting Divorced in Alabama

Getting a Divorce in Alabama: Part II (How to Obtain a Divorce)

In Alabama, there are essentially two ways to obtain a divorce if the parties cannot settle matters: by trial, or by default.  Either way, the judge will decide the parameters of the divorce, including custody, child support, alimony and whether the divorce will actually be granted.

Divorce by default

A default divorce occurs when one spouse serves the divorce papers on the other spouse (the defendant) and the defendant spouse fails to respond to the action within the deadline set by law.  If there is a default, the judge will base his ruling on the testimony of the spouse who filed the suit.  The spouse who failed to appear will not have the opportunity to present their side. 

Divorce by trial

If the defendant does make an appearance and files a response to the divorce complaint, the case is set for trial by the judge.  Unless the parties are able to settle the case, which means they have agreed on all issues, the court will actually hold a trial.  At trial, both parties have the right to call witnesses and submit evidence, as necessary.  The judge ultimately decides all of the issues and makes the final decision regarding the terms of the divorce, if it is indeed granted.

Uncontested Divorces

Nowadays, the most common type of divorce is an uncontested divorce.  As the title suggests, both parties agree to get a divorce and usually enter into a written marital agreement which sets out all of the necessary terms of the divorce.  Uncontested divorces are simpler and faster.  Since there is no need for a trial, uncontested divorces are also much less expensive.  However, in situations where a spouse cannot be located, the parties cannot reach an agreement, or there are complicated issues regarding custody or assets, uncontested divorces are usually not available.  If you need information regarding divorces or other family law issues, give us a call at (205) 988-5570.