Legal Aspects of Divorce Part 1

Divorce is an increasingly common occurrence in our society. Yet its effect on the parties, their property and children can often be devastating. Once entered, a Divorce Decree can establish the parties’ rights permanently. If you have decided to obtain a divorce, you should consult your personal attorney to assist you. Few lawyers consider themselves marriage counselors, but they are concerned for your well-being and how a divorce action affects you.

NOTE: This is an excerpt from a brochure from the Alabama State Bar, based upon Alabama law, issued to inform, not to advise. It presents you with some issues involved in divorce.

Grounds for Divorce

The basis or cause for which a court may grant a divorce is commonly referred to as a “ground” for divorce. There are many different grounds  for divorce in Alabama all of which are created by statutes.

The most commonly used ground is incompatibility. In practice, it is ordinarily not difficult to convince the court that incompatibility exists sufficient to dissolve the marriage relationship. A divorce based on this ground is commonly referred to as a “no fault” divorce. However, even though a finding of fault is not necessary to the court’s decision to grant a divorce, it is often an important factor in such matters as child custody, alimony, and division of property.

Other grounds for which divorce in Alabama may be granted include: adultery, desertion, penitentiary imprisonment for certain prolonged periods, addiction to alcohol or drugs, mental incapacity, cruelty, or conditions which existed at the time of the marriage without the knowledge of the other party such as pregnancy and incurable physical problems.

Divorce by Default or Trial

Two common methods of obtaining a divorce are by default or trial. A default divorce occurs when the party against whom the divorce suit is brought fails to respond within the time limit set by law.

If the defendant files a response to the complaint, the case will be set for a trial. In this set of circumstances, unless the case is settled prior to its going to trial, there will be an actual trial before the judge with each party having the right to call witnesses.

In either case the judge must decide all of the pertinent issues, such as whether or not a divorce will be granted, custody of the children, amount of child support, alimony, and division of property. The difference is that if there is a default, the judge will base the ruling on the oral or written testimony of only the party who filed the suit.

Non-Contested Divorces

The most common type divorce today is non- contested divorce. This means that both husband and wife agree to a divorce. In such a divorce, the parties usually enter into a written marital agreement defining their rights and duties and other issues of the divorce.

Marital Agreement and Mediation

This agreement should include all of the terms of the divorce, specifically matters relating to the children and to the property owned by the parties. A mediator working with the parties and their attorneys is one of the best ways to develop an agreement that is acceptable to both parties. The agreement is then presented to the judge, and if the judge approves it, a divorce is granted, and the marital agreement is made a part of the divorce decree. By mediating the issues and making their own agreement, parties avoid the necessity of a trial.

For more information on mediation, review the brochure “Parents are Forever: Mediating Divorce and Post Divorce Issues” available at www.alabar.org and talk with your lawyer.