Divorce FAQ

ALABAMA DIVORCE FAQ’S: QUESTIONS AND ANSWERS

Do I need an attorney to get a divorce?

Technically no. However, be advised that most divorces are not that simple, such as when there are children involved or if your divorce is contested. You should seek an attorney’s advice to see if your case is complex or not. Divorce is complex, and unless you know what you’re doing, you will have to do it over and over again until it is right.

What is an Uncontested Divorce in Alabama?

An uncontested divorce simply means that both sides agree 100% to the divorce. In most situations, one attorney can be used in this matter although the attorney can only represent one party. All of the paperwork is prepared at once and submitted to the Court by your attorney. There is no trial involved as all issues are resolved before the paperwork is submitted. Uncontested divorces are much cheaper.

What is a Contested Divorce in Alabama?

A contested divorce is the opposite of an uncontested divorce. It’s a situation where the parties cannot reach an agreement on one or more matters regarding their divorce. In a contested divorce each party will be represented by their attorney. Contested divorces are much more expensive for both parties.

Does Alabama recognize common-law marriages?

Yes. There is no number of years requirement in Alabama for a common-law marriage. The courts will look at the totality of the circumstances to determine if a man and a woman have a common-law marriage. In 2016, the Alabama Legislature passed a law banning the recognition of new common law marriage. Since January 1, 2017, couples must get married to claim they are married.

Why was common law marriage abolished?

The common law system of marriage is being abolished for several reasons. First and foremost, it is considered inefficient and confusing. Under this system, determining the marital status of a couple can often be a lengthy and complicated process, leading to unnecessary delays and uncertainty. This inefficiency is further exacerbated in cases of divorce, where a thicket of costly litigation is often required to settle disputes. Moreover, the common law system of marriage is seen as outdated in our modern society. While it may have had its merits in the past, when traveling to a courthouse or obtaining a marriage license was difficult or expensive for the average person, this is no longer the case. In today’s world, it is relatively inexpensive and convenient to go to the courthouse and obtain a marriage license, providing a more streamlined and accessible process. Additionally, the common law system of marriage is criticized for its reliance on subjective factors and variables of proof. Establishing the legal status of a couple can be a complex task, involving a range of factors such as cohabitation, public recognition, and intent to be married. This reliance on subjective evidence not only adds to the confusion and uncertainty but also increases the likelihood of costly legal battles. In conclusion, the abolition of the common law system of marriage is a response to its inefficiency, confusion, and potential for expensive litigation. With the availability of more accessible and streamlined alternatives, such as obtaining a marriage license, the need for a complex and subjective system has diminished.

What is evidence of common law marriage?

Evidence of a common-law marriage can be established through various factors. For instance, the couple may casually refer to each other as husband and wife, indicating the existence of a marital relationship. Additionally, if the wife has taken her husband’s last name, it could be seen as a form of common law marriage evidence. Other examples of evidence include jointly filed tax returns, joint bank accounts, and the testimony of friends and family who consider the couple to be married. These factors collectively serve as indications or proof of a common-law marriage.

What happens to existing common law marriages?

Existing common-law marriages will continue to be recognized under the new law being implemented in Alabama. Regardless of when these marriages were entered into, as long as they were established before January 1st, 2017, they will be considered valid by the state. Therefore, individuals currently in a common-law marriage need not worry about its validity being affected by the new law.

How can Ferguson and Ferguson help?

The Huntsville divorce lawyers at Ferguson and Ferguson specialize in providing comprehensive assistance to individuals going through divorce or legal separation. Our primary goal is to guide and support our clients throughout the process, helping them make informed decisions that protect their future and prioritize their financial stability and the well-being of any children involved. With our extensive experience in family law, we understand the complexities and challenges associated with divorce cases.

By seeking our services, you can benefit from personalized consultations that allow us to understand your unique circumstances and tailor our approach accordingly. We will work closely with you to explore all available options and discuss the advantages and disadvantages of each. Whether it’s addressing property division, spousal support, child custody, or visitation rights, our knowledgeable divorce lawyers will provide sound legal advice, ensuring that your rights and interests are safeguarded.

Our guidance extends beyond legal matters to consider the emotional and practical aspects of divorce or legal separation. We recognize the importance of maintaining a peaceful and amicable relationship whenever possible, particularly when there are children involved. Mediation and negotiation are methods we actively encourage to help our clients reach fair agreements outside of court, minimizing conflict and reducing the financial and emotional toll of a contentious divorce.

At Ferguson & Ferguson, we are committed to serving individuals in Huntsville and Athens, Alabama, as well as clients throughout North Alabama, including Madison County, Limestone County, Marshall County, Jackson County, Morgan County, and Laurence County. To initiate the process of working with us, we offer an initial consultation where you can discuss your situation and allow us to evaluate how we can best support you. You can reach us at 256-534-3435, or conveniently contact us online to arrange a consultation at your earliest convenience.

How long before my divorce becomes final?

It usually takes a couple of months if uncontested. A divorce can become final sometime after 30 days of the filing. Contested divorces can take years to become final in Alabama.

What is an Annulment?

The marriage was not truly official. Annulments are only available under a few limited circumstances, such as a marriage that was based on the premises of a false claim of pregnancy.

What is Alimony?

Payment from one spouse to another resulting from a divorce, can be used either to maintain a spouse’s lifestyle or to terminate property interests. Alimony can be a lump sum or payments over a specified period.

What is a fault-based divorce?

A fault divorce is one in which one party claims the other party did some legal wrong. Fault grounds can include adultery, physical or mental cruelty, desertion, alcohol or drug abuse, insanity, etc.

What are the Standard Parenting Clauses?

The Standard Parenting Clauses are a set of guidelines established by the court in every divorce case that involves children. These clauses outline various rules and provisions to govern the interactions between divorced parents in co-parenting their children. They often cover important aspects such as communication protocols during emergencies, ensuring reasonable access for the non-custodial parent to communicate with the child and other aspects of shared parenting responsibilities.

These clauses play a crucial role in divorce cases with children as they provide a structured framework for co-parenting after the dissolution of a marriage. By creating clear guidelines and expectations for both parents to follow, the Standard Parenting Clauses help maintain stability and consistency for the children involved. They aim to promote healthy communication between parents, ensure the well-being of the children, and minimize conflicts that may arise from co-parenting arrangements.

Understanding and adhering to the Standard Parenting Clauses is essential for parents navigating the challenges of post-divorce co-parenting. They serve as a roadmap for establishing a cooperative and child-focused parenting relationship, ultimately aiming to provide a secure and nurturing environment for the children as they adjust to the changes brought about by the divorce.

What child support forms are required in an Alabama divorce?

In a divorce involving children, specific child support documents must be completed regardless of whether child support payments will be made. Both parties are mandated to fill out forms detailing their monthly gross income, calculating potential child support amounts, stating their intentions regarding following the child support calculations, and providing the addresses of the children’s residences with each parent.

What is a Complaint in a divorce?

In a contested divorce, a divorce is initiated by filing a Complaint for Divorce. The Defendant spouse is served with the complaint. This legal document marks the formal beginning of the divorce proceedings and outlines the specific grounds for the divorce as claimed by the filing party. It serves as a crucial step in the legal process, setting the stage for further actions and decisions by the court. On the other hand, in an uncontested divorce, the parties mutually agree on all aspects of the separation and submit their agreement collectively. This streamlined approach simplifies the process, as there is no need for formal legal disputes or contentious filings. Understanding the role and significance of the Complaint in a divorce case is essential for navigating the complexities of the legal system during this challenging time.

What is a Certificate of Divorce?

The Certificate of Divorce is an official document that serves as a public record of the dissolution of a marriage. In the State of Alabama, this certificate is maintained by the Vital Records Department and is automatically generated through the electronic filing system once all required divorce documents have been submitted.

The significance of the Certificate of Divorce lies in its legal status as proof that a marriage has been legally terminated. This document can be used for various purposes, including updating legal records, changing marital status on official documents, and providing evidence of divorce as needed in legal proceedings. It serves as an official notice to the public and authorities that the parties involved are no longer legally married.

What is an affidavit in an uncontested divorce?

In the context of an uncontested divorce, an affidavit serves as the filing party’s sworn statement detailing essential information about the marriage, such as the date of marriage, shared residence, and any children involved. Additionally, the affidavit includes a declaration that there is an ‘incompatibility of temperament’ between the individuals seeking the divorce. Although these details are also presented in the initial Complaint document, a separate affidavit is required by law to formally affirm these crucial facts under oath.

What is the Answer, Waiver and Agreement to take testimony in a divorce?

The purpose of the Answer, Waiver & Agreement to Take Testimony document is to authorize the Court to establish jurisdiction over your case and issue an order in accordance with the requests outlined in the Complaint and settlement agreement without requiring the physical presence of the parties involved in court to provide sworn testimony.

What is the Acknowledgement of Rights in an uncontested divorce?

The Acknowledgement of Rights in an uncontested divorce is a legal process in which one spouse, often with the assistance of an attorney, drafts all necessary paperwork outlining the terms of the divorce agreement. The spouse who receives these documents then has the opportunity to review them thoroughly before signing. In this scenario, only one attorney is typically involved, as they can only represent one party in the divorce proceedings, even if both spouses are in agreement.

It is not a requirement for both spouses to have their own legal representation in an uncontested divorce. If the unrepresented spouse is content with the terms outlined in the paperwork, they may choose to waive the right to counsel by signing the Acknowledgement of Rights. This document signifies that the unrepresented spouse has reviewed the agreement and is choosing to proceed without their own attorney.

While it is a common practice for only one attorney to be involved in drafting the divorce documents in uncontested cases, the option for both parties to seek independent legal counsel is always available. If either spouse prefers to have the agreement reviewed by a separate attorney for added peace of mind or clarification, they are encouraged to do so.

What forms are required in an uncontested divorce in Alabama?

In order to proceed with an uncontested divorce, there are several essential documents that you will need to prepare and submit to the court. Here is a breakdown of the key documents required:

1. **Complaint**: The Complaint is the initial legal document that officially initiates the divorce process. It outlines the specific issues pertinent to your case and requests the court to review and approve the settlement or separation agreement that you and your spouse have reached.

2. **Settlement/Separation Agreement**: This document serves as a legally binding contract between you and your spouse, detailing the terms of your divorce or separation. It covers important aspects such as asset division, spousal support, and any arrangements related to child custody, visitation, and support. It is crucial to review this agreement thoroughly with your attorney, as it essentially maps out how you and your spouse will dissolve your marriage.

3. **Acknowledgement of Rights**: In uncontested divorces, where both parties are amicable and in agreement, it is common for only one spouse to have legal representation. The unrepresented spouse may choose to waive their right to counsel by signing an ‘Acknowledgment of Rights’, indicating that they have reviewed the agreement and are comfortable proceeding without independent legal advice. While it is not mandatory for both parties to have separate attorneys, the document ensures that the unrepresented spouse is aware of their rights and consents to the terms of the agreement.

These documents provide the foundation for an uncontested divorce proceeding by outlining the agreed terms of separation, asset division, and arrangements for any children involved. It is advisable to consult with a family law attorney to ensure that these documents are properly drafted and meet all legal requirements before submitting them to the court.

How do you begin the divorce process?

If contested, a divorce is initiated by filing a Complaint for Divorce. The Defendant spouse is served with the complaint. In an uncontested divorce, the parties agree to everything and file it all together.

What happens if my spouse won’t agree to sign the papers?

The divorce will be contested. A contested divorce often results in going to trial to resolve the issues of the divorce. Both sides are allowed to make discovery requests that include Interrogatories, Requests for Production, Requests for Admission, and Depositions. Settlement may be reached between your attorneys or in mediation.