Alabama Family Law Blog

There are two things that I recommend for the person contemplating divorce under these circumstances. One is obvious, the other may not be.

First, you need to seriously consider getting a private investigator. In Alabama "fault grounds" is relavent in a divorce case and can affect the property settlement and alimony awards. Depending on whether the children are being affected by the conduct, it may also influence the custody determination.

But, do not pull out the yellow pages and pick the cheapest p.i. you can find. You should talk to your divorce lawyer about arranging a p.i. who he knows is competent and can be an effective witness in court if that becomes necessary. (The same advice about not using the yellow pages and hiring the cheapest divorce lawyer you can find also applies!)

The second piece of advice is to immediately get tested for sexually transmitted diseases. Obviously you don't know the sexual history of the person with whom your spouse is having an affair. Yes, I know it is an awful thought. But, I can promise you it happens. And, God forbid it happens to you, the sooner you find out about it, the sooner you can be treated. Additionally, if that were to happen, it can dramatically change the posture of your case as there may be additional legal claims that need to be brought. And, if those claims need to be brought your lawyer needs to know about it immediately.

If you are about to go through a divorce and you and your spouse signed a nuptial agreement (either before your marriage or after), you need to inform your lawyer of that fact immediately. That seems like a rather obvious statement, but I have seen cases where the client's failed to mention to their lawyers that a prenuptial had been signed until well into the divorce litigation. It is critical for your lawyer to have a copy of the prenuptial and any amendments that may later have been made to it as early in the process as possible, in order for the lawyer to be able to properly advise you.

Prenups are generally valid in Alabama if certain requirements are met - these basically have to do with full disclosure of the assets and the availability of independent counsel, abscence of duress, etc.

If all of the conditions are met and the prenup is valid, then its terms will usually govern the dispostion of the assets and debts and terms of any property settlement and/or alimony.

Custody, child support, visitation, and other issues regarding the best interests of the children are generally not issues that can be addressed in the prenup and thus will have to be resolved through the divorce case (through negotiation, alternative dispute resolution or trial).

First of all, don't miss your Court date if you can help it. In most courts in Alabama, if you are properly served and fail to show up for Court, the Judge will enter a default judgment against you and in favor of your spouse (or in the case of a modification or contempt case, your ex-spouse). This essentially means that the judge will grant your spouse the relief they request without getting any input from you.

If you have a trial date that is approaching get to a lawyer immediately. Under certain circumstances, the lawyer may be able to get a continuance for you.

If you unavoidably missed a trial or hearing, talk to a lawyer to see if you can have the default judgment set aside. In the jurisdictions in which I practice, my experience has been that the judges would prefer not to enter deaults. So, they will often consider giving a litigant a second chance to present evidence, if there was a legitimate reason for missing the court date and/or the issues that were decided in the default judgment were critical (such as child custody, alimony, etc.) But, time is essential here. A motion to set aside a default needs to be filed as soon as possible, and in many instances, it must be filed prior to the expiration of 30 days from the date of the entry of default.

You should generally avoid making any major new purchases while your divorce is pending. If you purchase a major asset like a house before your divorce is final, it will have to be addressed in the Divorce Decree. This could affect the rest of the property settlement. Also, your lawyer can help you plan to make a purchase such as this by structuring the settlement to put you in the best financial position possible for you to buy a house once the divorce is final.

You may also want to review the following two posts:
Can I change the locks? and
Should I move out of the house?

There are three reasons people generally consider utilizing the services of a detective in their divorce case: to discover assets, to do a background check and to conduct surveillance. The first two reasons listed can now often be done utilizing online databases instead of the services of a P.I. which can potentially save money. With regard to surveillance, a good private investigator can be invaluable in the case, particularly if fault (e.g. adultery, addition to drugs or alcohol, etc.) is an issue.

I won't get into the distinction of fault grounds vs. no fault grounds in this post (that's a subject I'll deal with more extensively in a post of its own), but Alabama does consider fault in making determinations related to the property settlement and to alimony. Of course, in a contested custody case, a parent's conduct is also important. So, there are reasons that this evidence can be extremely valuable. For example, having evidence of adultery from the p.i. can give you a great deal of leverage in negotiating a settlement.

This question is the converse of the one we asked last week (Should I Move Out?). The general answer is unless you have a Court Order granting you exclusive possession of the home, then you should not change the locks.

If you do change the locks without a Court Order giving you possession of the home, not only will the Judge not be happy about it, if your spouse were to "break in" he or she would not be in violation of the law. Changing the locks when you don't have Court ordered possession of the home is generally not a good idea and is a good way to escalate the case to a more adversarial (and therefore more expensive) posture. If you are thinking about doing so, you should talk to your lawyer about it first.

There is no blanket answer to this question. It depends on the particular circumstances of your case. For example, if custody is contested, it is generally a bad idea to move out without adequate arrangements to take your children with you.

Where custody is not disputed, it still may not be a good idea. Many people tell me they are afraid of being guilty of abandonment if they do move out. That is not really the issue. In Alabama for a court to grant the divorce on the grounds of abandonment, then the period of abandonment must be at least 12 months.

I'll give a good lawyer answer - it depends. In Alabama, we have a mandatory 30 day "cooling off period." So, if the case is uncontested from the outset, it will take at least that long from the time the Agreement is filed with the Court until the Divorce Decree is signed by the Judge.

On the other hand, if the case has to be litigated, the earliest one can expect to get to trial in the jurisdictions in which I primarily practice (Mobile and Baldwin counties) is 3-4 months. However, it is not unusual for a case to be reset from that initial trial setting for various reasons. I generally tell my clients they can reasonably expect it to be resolved in 6-12 months if a trial is necessary. Occassionally we can get it tried quicker than that and rarely does it take longer.

The length of time it takes to get to trial is just one of several reasons that I encourage my client to try to resolve their case by reaching a fair settlement, if that is possible (sometimes it is not -such as when the opposing party or lawyer is unwilling to work towards a fair settlement in good faith).

No, it is a conflict of interest for one lawyer to represent both sides in a divorce. It is not unusual for one lawyer to draft the divorce documents for an uncontested divorce and there not be a second lawyer involved, but understand that such a lawyer has an ethical obligation to protect the interests of his or her client in that agreement, i.e. the Plaintiff. In very simple divorces (short term marriages with no children, no joint real property and no joint debt) you may not need your own lawyer, but I highly recommend that you at least have a lawyer review the documents for you before you sign them.

My spouse wants a divorce but I do not want to give it to him/her. How do I stop the divorce?

Unfortunately, you cannot stop the divorce. As I tell my clients, it takes two people to decide to get married, it only takes one to decide to get a divorce. The party that does not want the divorce can make it take longer, and cost more, but they cannot force the other party to stay married to them. You can encourage them to reconcile, and invite them to attend marriage counseling with you, and sometimes this will result in a change of heart and a reconciliation. But, unless your spouse is willing to do this voluntarily, you cannot force them and the divorce will happen - at that point is becomes a question of when and under what terms.