The Only Thing Worse Than a Bad Marriage
Is a Bad Divorce

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. 

WHAT THIS MEANS IN PRACTICE:   

What this means in practice: Alabama's six-month residency rule is one of the longer ones in the Southeast. Tennessee, Georgia, and Mississippi all have shorter periods. We regularly see clients who moved to Alabama for Redstone Arsenal, healthcare positions in Birmingham, or TVA in the Shoals, and need to wait before filing.

The statute states that Alabama recognizes both no-fault and fault-based grounds. The most commonly used no-fault ground is "incompatibility of temperament," followed by "irretrievable breakdown of the marriage." Fault-based grounds include adultery, voluntary abandonment for at least a year, imprisonment, addiction, physical incapacity, mental institution confinement for five years, and violence against the other spouse.

What this means in practice: Almost every Alabama divorce filed today uses no-fault grounds. Fault grounds still matter, but not for the reason most people assume. They rarely affect whether the divorce is granted, but they can significantly affect alimony, property division, and in extreme cases custody decisions.

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 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”. 

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. 

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. 

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. 

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. 

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. 

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. 

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”.

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.

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.

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.

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 their years of experience, we can avoid this for our clients with advanced planning.

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

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.

What this means in practice: Joint legal custody is the default starting point. Joint physical custody (50/50 time) is increasingly common but not automatic. The "best interest" standard is intentionally broad, which means individual judges have enormous discretion.

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. 

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 reasonable notice. However, the divorce decree 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. 

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. 

Alabama is an equitable distribution state, not a community property state. Marital property is divided fairly, which does not always mean equally. Judges consider the duration of marriage, contributions of each spouse, future needs, and the cause of the divorce.

What this means in practice: A 50/50 split is the starting point, but judges have wide discretion. When one spouse stayed home to raise children, when one spouse's career was sacrificed for the other's, when there's clear fault, or when there are substantial premarital assets, the split shifts. Property division is where Alabama divorce gets the most complicated.

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.

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


1. The needs of the children; and
2. 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. 

The judge in a divorce action has the 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.

What this means in practice: Alabama is more conservative on alimony than many states. Since the 2018 statutory changes, periodic alimony in most cases is capped at the length of the marriage. Rehabilitative alimony, designed to help a spouse get back on their feet, is now the most common form awarded.

Although alimony was traditionally given 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. 

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 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. 

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.

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

1. The needs of the children; and
2. 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. 

The statute requires a 30-day waiting period between the filing of a divorce complaint and the entry of a final judgment. This is mandatory and cannot be waived even by agreement.

What this means in practice: Even the simplest uncontested divorce in Alabama cannot be finalized in less than 30 days. In Madison County (Huntsville), uncontested divorces typically run 45-90 days. In Jefferson County (Birmingham), expect 60-120 days due to higher docket volume. The 30-day floor is statutory and cannot be waived.

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.