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Divorce laws are written and enforced by the state in which the partners reside. This means your state and local family law court determine such things as divorce case filing and pleading procedures, spousal and child support payments, custodial rights of parents and the division of community property. Described information comes from government publications and resources. Make sure to consult a lawyer in your state for the most current law and procedures.

RESIDENCY REQUIREMENTS: To file for a divorce in Alabama, one party must be a bona fide resident (which must be alleged in the complaint and proven) of the state for six months before the filing of the complaint. [Based on Alabama State Divorce Code - Chapter 2, Section 30-2-5]

LEGAL GROUNDS FOR DIVORCE: A divorce may be granted based on the following causes:

1. If, at the time of the marriage, either party was physically and incurably incapacitated from entering into the marriage state.

2. For adultery.

3. For voluntary abandonment from bed and board for one year prior to the filing of the complaint.

4. Imprisonment in the penitentiary of this or any other state for two years, with the sentence being for seven years or longer.

5. The commission of the crime against nature, whether with mankind or beast, either before or after marriage.

6. Addiction to alcohol or drugs after the marriage.

7. Incompatibility.

8. Confinement in a mental hospital for a period of five successive years, if such party is hopelessly and incurably insane at the time of the filing of the complaint;

9. An irretrievable breakdown of the marriage where further attempts at reconciliation are impractical or futile and not in the best interests of the parties or family.

10. In favor of the husband, when the wife was pregnant at the time of marriage, without his knowledge or agency.

11. In favor of either party to the marriage in cases of domestic violence or reasonable apprehension of such violence.

12. In favor of the wife when the wife has lived separate and apart from the bed and board of the husband for two years and without support from him for two years next preceding the filing of the complaint, and she has bona fide resided in this state during said period. [Based on Alabama State Divorce Code - Chapter 2, Section 30-2-1]

LEGAL SEPARATION: Alabama recognizes legal separation, and shall enter a decree of legal separation if all of the following requirements are satisfied: (1) The court determines that the jurisdictional requirements for the dissolution of a marriage have been met. (2) The court determines the marriage is irretrievably broken or there exists a complete incompatibility of temperament or one or both of the parties desires to live separate and apart. (3) To the extent that it has jurisdiction to do so, the court has considered, approved, or provided for child custody, and has entered an order for child support in compliance with Rule 32 of the Alabama Rules of Judicial Administration. A decree of legal separation does not terminate the marital status of the parties. [Based on Alabama State Divorce Code - Chapter 2, Section 30-2-40]

PROPERTY DIVISION: Alabama is an equitable distribution state, meaning that if the parties can't agree, the property will be distributed in an equitable fashion, not necessarily equally. All property of the wife, held by her previous to the marriage or to which she may become entitled after the marriage in any manner, is the separate property of the wife and is not subject to the liabilities of the husband. All property of the wife, whether acquired by descent or inheritance, or gift, devise or bequest, or by contract or conveyance, or by gift from or contract with the husband, is the separate property of the wife within the meaning of, and is subject to all the provisions of, this chapter, saving and excepting only such property as may be conveyed to an active trustee for her benefit. [Based on Alabama State Divorce Code - Chapter 4, Section 30-4-1, and 30-4-5]

ALIMONY/MAINTENANCE/SPOUSAL SUPPORT: The awarding of alimony is determined by the need of one spouse requesting alimony and the ability of the other spouse to pay. If fault is a factor in the divorce, the judge has the right to 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. However, any property acquired prior to the marriage of the parties or by inheritance or gift may not be considered in determining the amount of alimony. [Based on AL State Divorce Code - Chapter 2, Section 30-2-52, 30-2-53]

SPOUSE'S NAME: Upon request, the wife may resume the use of her maiden name or any previous surname. Upon application of any interested party, the divorced wife may be enjoined from the use of the given name or initials of the divorced husband. [Based on Alabama State Divorce Code - Chapter 2, Section 30-2-11]

CHILD CUSTODY: Alabama strives to assure that minor children have frequent and continuing contact with parents who have shown the ability to act in the best interest of their children and to encourage parents to share in the rights and responsibilities of rearing their children after the parents have separated or dissolved their marriage. The court shall in every case consider joint custody but may award any form of custody which is determined to be in the best interest of the child. Joint custody does not necessarily mean equal physical custody. In determining whether joint custody is in the best interest of the child, the court shall consider the same factors considered in awarding sole legal and physical custody and all of the following factors: (1) The agreement or lack of agreement of the parents on joint custody. (2) The past and present ability of the parents to cooperate with each other and make decisions jointly. (3) The ability of the parents to encourage the sharing of love, affection, and contact between the child and the other parent. (4) Any history of or potential for child abuse, spouse abuse, or kidnapping. (5) The geographic proximity of the parents to each other as this relates to the practical considerations of joint physical custody. [Based on Alabama State Divorce Code - Chapter 3, Section 30-3-150, 30-3-152]

CHILD SUPPORT: Child support is determined using the Income Shares model, with the theory that children should continue to receive that same amount of support as if the parents were still together. In making a determination of child support, the court shall apply Rule 32 of the Alabama Rules of Judicial Administration. (This is a PDF file) [Based on Alabama State Divorce Code - Chapter 3, Section 30-3-155]

A NOTE ABOUT CHILD SUPPORT PAYMENTS:

A parent can be incarcerated if he/she knowingly and willfully fails to pay child support.

It’s called civil contempt and requires a civil court action to bring and requires a court hearing.

If a parent willfully disobeys a lawful child support order, he or she can be jailed for contempt of court. A civil contempt action is required and is usually brought by the custodial parent. The nonpaying spouse will have to be served with judicial process since he or she will be ordered to appear at the hearing and present a defense to the allegations. If the nonpaying spouse does not appear, the trial court has the option of issuing a bench warrant for arrest. If the court finds that the parent has willfully failed to pay child support pursuant to a court issued child support order, the court can order the nonpaying parent jailed.

The court will also look at the actual ability of the nonpaying spouse to pay and the court may not find the nonpaying spouse was acting in bad faith or had mitigating circumstances such that there was an actual inability to pay. Good faith is always required to win in these types of cases.

Often, the mere threat of jail is sufficient to force the spouse to pay.

A NOTE ABOUT MODIFICATION OF CHILD SUPPORT PAYMENTS:

The court that makes the original child support award has ongoing jurisdiction to modify the award. Either spouse may request the court change the order at any time during the child's age of minority. This is usually the age of 18 in most states.

Modifications do not occur without one party taking action. One of the parents must file and serve a motion and request a formal hearing and provide evidence to the court why their should be a formal motion change the terms of the support order. This usually requires a showing of changed circumstances in almost all jurisdictions from the facts, as they existed at the time that the last order was entered.

HOW TO ENFORCE CHILD SUPPORT IN ALABAMA – THE FEDERAL OPTION

How To Enforce Child Support in Alabama

Federal Options Enforcement (CSE) Program is a federal/state/local effort to locate parents, their employers, and/or their assets; establish paternity if necessary; and establish and enforce child support orders. The federal role is to provide funding, issue policies, ensure that federal requirements are met, and interact with other federal agencies that help support the CSE program.

How and where do I apply?

In most states, CSE offices are listed under the human services agency in the local government section of the telephone directory. If there is not a separate listing, the human services agency information operator should be able to give you the number. State CSE agencies are listed at the end of this brochure; they also can provide telephone numbers for local offices.

Call your Child Support Enforcement office to learn how to apply for enforcement services and what documents (birth certificates, financial statements, etc.) you should provide.

What are the steps to collecting support?

The first step, if a child was born out of wedlock, is to establish paternity - or make a legal determination of who fathered the child. Many men will voluntarily acknowledge paternity. Either parent can request a blood test in contested paternity cases. Your caseworker will help you to establish paternity for your child.

Establishing the obligation is the next step. The fair amount of child support that the non-custodial parent should pay is determined according to state guidelines. Your CSE office will be able to tell you how support award amounts are set in your state. Your CSE office can also request medical support for your child.

The last step is enforcement of the child support order. The CSE office can help with collecting the money due no matter where the non-custodial parent lives.

At any of these steps, the CSE office may need to know where the non-custodial parent is living or where he/she is working. When a parent has disappeared, it is usually possible for the CSE office to find him/her with the help of state agencies, such as the Department of Motor Vehicles, or the Federal Parent Locator Service. Your caseworker can tell you what information is needed to find an absent parent or his/her employer.

The most successful way to collect child support is by direct withholding from the obligated parent's paycheck. Most child support orders require the employer to withhold the money that is ordered for child support and send it to the CSE office. Your Child Support Enforcement office can tell you about this procedure.

Federal and State Income Tax refunds may be withheld to collect unpaid child support. States also have laws, which allow them to use: liens on real and personal property; orders to withhold and deliver property; or seizure and sale of property with the proceeds applied to the support debt. Many states routinely report child support debts to credit bureaus and smart parents are bringing their payments current so that their credit won't be affected.

For More Information write for the Handbook on Child Support Enforcement by contacting:

ACF OCSE National Reference Center

370 L'Enfant Promenade, S.W.

4th Floor Washington, DC 20447

(202) 401-9383

or

OCSENationalReferenceCenter@acf.hhs.gov