Alabama Family Law Overview

Living Together / Common Law Marriage

Alabama is one of only a few states that recognizes common law marriage - meaning that if you meet certain requirements, the law considers you to be legally married even if you didn't get a marriage license, have a ceremony or exchange rings. If you breakup, you'll need to get an official divorce. To have a common law marriage in Alabama you must:

a. Be at least 14 years old and mentally capable of entering into the relationship,

b. Agree and consent to being husband and wife (meaning that you "hold yourself out to be married" by doing things like using the same last name, filing your taxes together, or otherwise acting or saying that you are married);

c. Consumate the marriage (openly living together and assuming marital duties and obligations).

Divorce Overview

To get a divorce in Alabama, one of you must have lived here for at least six months. You'll file in either the county where your spouse lives or in the county where you were living when you separated. Once filed, there's a 30 day waiting period before your divorce can be effective.

Alabama permits most forms of no fault divorce as well as traditional fault divorces. Grounds for divorce can include things such as:

• adultry
• abandonment (for at least one year)
• a prison sentence of 7 years or more (after 2 years served)
• the commission of a crime against nature
• becoming addicted to drugs or a habitual drinker
• confinement to a mental hospital for 5 or more years
• domestic violence or reasonable apprehension of such violence

Dividing Property

Under Alabama case law, Alabama is an "equitable distribution" state - but that doesn't mean 50/50 equal - instead, it means "fair". The judge has a lot of discretion in how to divide property, usually starting by giving back what each person brought into the marriage and then splitting up the rest. Generally, gifts or inheritances specifically to you remain yours as non-marital property. Then the court normally considers the length of the marriage, age, health, conduct of the parties, occupation, skills and employment of the parties. The court generally will award more property and fewer debts to the spouse who has less earning ability, less financial contribution to the marriage (especially if the marriage is a short-term marriage), poor health or other adverse circumstances, and custody of minor children.

A marital separation agreement, also known as a property settlement agreement, is a written contract dividing your property, spelling out your rights, and settling problems such as alimony and custody. A marital separation agreement may be drawn before or after you have filed for divorce — even while you and your spouse are still living together. When you begin the divorce proceedings you can attach the Marital Separation Agreement to the complaint and ask the court to merge, but not incorporate, the Agreement into the final judicial decree. If the Marital Separation Agreement is incorporated into the decree, it becomes a court order and is enforceable by the court's contempt powers. If you don't incorporate it into the decree, it simply becomes a contract between you and your spouse, which you later have to sue in a separate action to enforce. If the separation agreement is not incorporated into the divorce decree, and your spouse violates the agreement you can still seek money damages for the violation of the agreement, but it is easier and faster if the agreement is incorporated into the divorce decree.

Child Custody

Since the 1981 Ex parte Divine case, custody between parents in Alabama is generally decided using 12 factors:

1. Child's age and sex
2. Child's emotional, social, moral, material, and educational needs
3. Each parent's ability to meet those needs.
4. Home environment offered by each parent.
5. The characteristics of each parent (age, character, stability, mental and physical health)
6. Relationship between each child and each parent.
7. Relationship between the children.
8. Effect on the child to disrupt or continue an existing custodial status.
9. Preference of each child (considering age and maturity).
10. Reports/recommendations of expert witnesses or investigators.
11. Other available alternatives.
12. Any other relevant matter the evidence may disclose

With that said, courts still clearly favor awarding custody to mothers, unless the mother is an unfit parent as evidenced a pattern of behavior where she places the children in danger or exposes them to extremely incorrect situations.

Child Support

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