ALABAMA FAMILY LAW

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Types of Alabama Divorces and Marital Complaints

When a couple is faced with marital difficulties, there are several filing options available in Alabama. The most common filing is a Complaint for Divorce. A divorce, when final, terminates the marriage. There are two types of divorce filings in Alabama: contested and uncontested. In very rare circumstances, a spouse may have grounds to file a type of marital complaint that invalidates the marriage from the beginning rather than terminating it. This marital complaint is called a Complaint for Annulment. Many myths exist about the annulment process. The requirements for an annulment are not common or easy to meet. Since Alabama law allows a no fault divorce, it is typically easier to just get divorced. Alabama law also allows for a third type of marital complaint that avoids eliminating the marriage. This type of filing is called a Complaint for Legal Separation. The parties may get a legal separation when they need enforceable rights and obligations but do not wish to terminate their marriage. Some basic information about the various types of marital complaints is provided below.

Uncontested divorce

An uncontested divorce case is the simplest and least expensive route to get a divorce in the short term. A divorce case is considered uncontested when both parties decide before filing the complaint that they both want a divorce and agree on the settlement terms for all marital issues. In the most typical uncontested divorce case, only one party hires an attorney. The hiring party becomes the plaintiff in the case. The attorney represents the plaintiff only. This lawyer privately advises the plaintiff regarding Alabama laws and the plaintiff’s best interests in the divorce. This advice includes ways to improve the plaintiff’s outcome in the settlement. The attorney then prepares the documents necessary to obtain the divorce, including a settlement agreement. The uncontested divorce and the entire uncontested divorce package is filed with the appropriate court. According to Alabama law, the judge must wait at least thirty days after the divorce complaint is filed before the divorce can legally be finalized.

CAUTION: An uncontested divorce is the cheapest method in the short term, but it can have expensive negative consequences for the defendant in the long term. When only one attorney is hired, that attorney only represents the plaintiff the divorce. Therefore, when there is only one lawyer, the defendant does not have the benefit of legal counsel. Without legal counsel, it can be difficult to understand the legal meaning and consequences of the divorce settlement language. Without advice from a skilled Alabama lawyer, the defendant may unknowingly agree to terms that are not in that party’s best interests.
TIP: Even in an uncontested divorce case, the defendant has the right to representation from an Alabama lawyer. If you are the defendant, the best decision is to hire a lawyer to review the divorce settlement and provide advice before signing anything. Hiring a lawyer to review the divorce settlement is normally inexpensive. This review will help to avoid unpleasant surprises and unexpected negative long-term consequences. Such negative consequences may require expensive litigation to change. Some consequences may not even be correctable. Having representation, even though the divorce is uncontested, is the safest way to minimize overall expenses.

Contested divorce

A divorce is contested when the parties cannot agree upon settlement terms before the complaint is filed. When this disagreement happens, more steps are required to complete the divorce process. The case may still settle without trial, but this is often only after the parties have conducted discovery and there have been many intermediate hearings. If the case does not settle before trial, the Alabama judge will take evidence and hear testimony from the parties and any witnesses presented. Then the Alabama judge will enter a final judgment based upon that evidence and testimony. If the parties are dissatisfied with the outcome, they have thirty days to ask the judge to make changes and forty-two days to appeal.

CAUTION: If there is the possibility of appeal, it is important to preserve the record of the divorce trial. This preservation is done by making sure that a court reporter makes a record of the trial. Some Alabama counties have a court reporter on staff that automatically records all proceedings. Other counties require the parties to provide their own court reporter. In these counties, the court reporter is an extra expense of trial. However, this reporter is a necessary expense for a successful appeal. Without a court record, the appellate courts typically uphold the decision of the judge and appeal of the divorce is ineffective.
TIP: If you are facing a contested divorce, it is important to begin planning as soon as possible. Most Alabama divorces are won by careful strategy before trial. Preparation and planning can be key to avoid the need for an appeal. It is important to determine before trial whether the divorce court will provide a court reporter. When considering the last settlement offer made, it is also important to factor in all costs required to take the case to trial. The costs considered should include legal fees and court reporter costs. The total costs affect the net financial outcome of settlement and should be considered in determining if trial is likely to be more advantageous.

Annulment

A marital complaint for annulment must be based upon some grounds that invalidate the marriage. Unlike a divorce, an annulment does not actually terminate the marriage. Instead, an annulment undoes the marriage by declaring that the marriage never was legal in the first place. In Alabama, all marriages are presumed to be valid, so the burden is on the party who files the Complaint for Annulment to prove that the marriage was invalid. Some grounds that support an annulment complaint are bigamy, incest, duress, impotency and under age marriage. Certain types of fraud can also entitle the plaintiff to an annulment. Some examples of these types of fraud are concealment of a sexually transmitted disease, concealment of pregnancy or an intent not to cohabitate. The types of circumstances that support an annulment do not commonly occur. Since Alabama law provides a no fault ground for divorce, a divorce is easy to obtain if the evidence does not support the filing of an annulment complaint.

CAUTION: Even if you have grounds to file a marital complaint for annulment, it may not be your best option. Due to the higher burden of proof, an annulment may be more expensive than a divorce. Also, the court does not have the authority to award permanent periodic alimony when a marriage is annulled.

Legal separation

Sometimes when a couple has marital difficulties, they need to separate but they do not want to end the marriage. When such a separation occurs, they may need legally enforceable rights and responsibilities. Alabama law provides for a marital complaint requesting a legal separation in these circumstances. To obtain a legal separation, you must meet the same basic requirements for a no fault Alabama divorce. You must also specify in the marital complaint that you are requesting a legal separation rather than a divorce. In a legal separation, the court can award custody, visitation and child support. These awards are only temporary. In the event one of the parties files a complaint for divorce later, the court will determine custody according to the best interests of the children. In a legal separation, an Alabama court can also award alimony and make property divisions. If the parties agree in writing as part of the legal separation, these awards can become permanent in the event of divorce. If the parties do not agree, then these awards are only temporary. If there is no final alimony and property division in the legal separation, the parties will be starting all over if they later file a marital complaint for divorce.

CAUTION: Getting a legal separation first can increase the overall cost of your Alabama divorce. If the parties contest the terms of the separation and then contest the terms of a later divorce, this can be almost as expensive as two divorces. If you really think that there is a chance of reconciliation, legal separation may be the best route. However, if you feel strongly that divorce is inevitable, be aware of that a legal separation may be an unnecessary extra expense.
TIP: Legal separation usually works best if custody will not be an issue in a later divorce and the parties agree to make a final alimony and property division part of the separation. In that circumstance, there is little or nothing to contest in a later Alabama divorce filing.

Contact The Burleson Firm

From a central location in Birmingham, Alabama, The Burleson Firm has helped families in Alabama with divorce and marital issues for over 20 years. If you are having marital difficulties and want to understand your options, we can answer your questions and help you determine the best type of marital complaint for your circumstances. Let The Burleson Firm schedule a no-obligation conference with a serious Alabama attorney. Our law firm can answer your divorce and family law questions and assist you in any county in Alabama.

For a free phone consultation, call us at 1 (205) 795-2033.

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