Gavin Howe
Common-law marriage in Alabama is defined as a union between two people not formalized in the customary manner as prescribed by law but created by an agreement to marry. Common-law marriage was abolished in Alabama on January 1, 2017, however, the state still recognizes common-law marriages created before this date. If a couple qualifies as being in a common-law marriage, all the legal processes that apply to a legal marriage would apply, including divorce. To get a common-law divorce in Alabama, one must meet the state residency requirement and file a case in court. The process of filing for divorce in Alabama can be complicated, and it is recommended to work with an experienced Alabama divorce attorney.
| Characteristics | Values |
|---|---|
| Common law marriage | Abolished in Alabama on January 1, 2017 |
| Common law divorce | N/A |
| Divorce requirements | File a case in court, meet state residency requirements, provide "grounds" (a legally acceptable reason) |
| Residency requirements | Bona fide resident of Alabama for at least six months prior to filing |
| Grounds for divorce | Fault and no-fault divorces are allowed in Alabama |
| Fault divorce grounds | Spouse sentenced to prison, spouse's drug or alcohol addiction, spouse committed a crime against nature, spouse is incurably insane |
| Uncontested divorce | Spouses agree on everything, including dividing assets, custody, child support, etc. |
| Contested divorce | Spouses disagree on anything in the divorce papers |
| Temporary separation | Judges may issue temporary separation orders before granting a divorce |
| Temporary alimony | May be awarded during divorce proceedings |
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What You'll Learn
Common law marriage in Alabama
In Alabama, common-law marriage is defined as a union between two people that is not formalized in the customary manner prescribed by law but is created by an agreement to marry. The biggest factor in being considered married under common law is "holding yourselves out as a married couple." This means referring to each other as husband and wife and being referred to as a married couple by others in your community. Other factors that may be considered include having a child together, filing a joint tax return, or purchasing property together.
To be considered a common-law marriage in Alabama, the relationship must have begun before January 1, 2017, when common-law marriages were banned in the state. Common-law marriages that existed before this date are treated for all legal purposes as regular marriages, and a divorce is required to end the relationship. The process for obtaining a common-law divorce in Alabama is the same as for a traditional marriage. If both parties agree on the terms of the divorce, including the division of assets, custody, and child support, an "uncontested" divorce can be filed with the court. If the parties do not agree, a "contested" divorce must be filed, and a series of court appearances will be required to sort out the issues.
It is important to note that the tests for common-law marriage in Alabama can be vague, and it is recommended to seek the advice of a qualified legal professional to determine the legal standing of a particular relationship. The Alabama State Bar provides information on the legal aspects of divorce, including property settlement, and forms for filing and answering a divorce complaint can be found on the Alabama Courts website.
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Residency requirements
To initiate divorce proceedings in Alabama, one must satisfy the state's residency requirements. Alabama, like other states, has specific rules on when one can file for divorce, depending on whether both spouses live locally or only one spouse resides in the state.
If both spouses live in Alabama, one can file for divorce at any time. However, if only one spouse resides in Alabama, the plaintiff (the person filing for divorce) must have been a bona fide resident of the state for at least six months before filing. This requirement is important because while a divorce granted in one state is recognised in every other, the laws can vary significantly on residual matters such as child custody or spousal support.
It is worth noting that Alabama does not require either spouse to be "domiciled" in the state to file for divorce, which can be more challenging to prove than "residency". Additionally, Alabama has 21 separate judicial circuits, and the correct jurisdiction for filing depends on one's residency and other factors. Cases are typically resolved within one of these circuits, but they can be taken to the next level if there is an appeal.
While it is not mandatory, consulting an attorney at the outset is advisable, especially when the spouses live far apart, as it can help navigate the complexities of jurisdiction and residency requirements.
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Grounds for divorce
Common-law marriage was abolished in Alabama on January 1, 2017. However, Alabama is one of the few states that still recognizes common-law marriage. If a couple qualifies as being in a common-law marriage, they must get a regular divorce through the court system.
To file for divorce in Alabama, you must meet the state's residency requirements. If both parties live in the state, you can file for divorce at any time. If the defendant lives out-of-state, the plaintiff must have been a resident of Alabama for at least six months.
Alabama recognizes two main types of divorce: no-fault divorce and fault-based divorce. In a no-fault divorce, you are saying that neither party is at fault for the marriage ending. To qualify for a no-fault divorce in Alabama, you must certify that there has been an irretrievable breakdown of your marriage and that it is beyond repair.
In a fault-based divorce, you claim that your spouse's actions caused the end of your marriage. Alabama recognizes the following fault-based grounds for divorce:
- Adultery: Proving that your spouse cheated on you during the marriage may benefit you if you wish to pursue alimony.
- Incurable insanity and commitment to a mental hospital for five years: Your spouse must have been confined to a mental health institute for five years, with a physician at that facility certifying that they are incurably insane.
- Impotence: At the time of the marriage, your spouse was physically and incurably incapacitated from entering into the marital state.
- Abandonment: You may claim that your spouse voluntarily abandoned the marriage, either with or without your consent.
- Pregnancy: A husband can file for divorce if his wife was pregnant at the time of the marriage and he did not know.
It is important to note that proving fault may not always impact the outcome of your divorce. An attorney can advise you on the advantages and disadvantages of arguing fault versus no-fault in your specific circumstances.
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Contested vs uncontested divorce
Common law marriage was abolished in Alabama on January 1, 2017. However, if a couple had entered into a common-law marriage before that date, they must get a regular divorce through the court system.
A contested divorce occurs when one or both parties fight the divorce itself, or cannot agree on key decisions necessary to complete the divorce process. This includes disputes over property division, alimony, child custody, and child support. Contested divorces may take years to resolve and require a lot more steps to be adjudicated before a judge. They are also far more costly than uncontested divorces.
An uncontested divorce occurs when both parties agree to the divorce and have come to a mutual agreement on all key decisions. Uncontested divorces can usually be resolved in six to ten weeks with minimal court involvement. They are also far less costly than contested divorces, requiring only attorney's fees and court filing fees.
It is important to note that even if a couple agrees to an uncontested divorce, the process is not guaranteed. A judge may still hear an uncontested divorce if unexpected issues arise. Conversely, if a couple has agreed to a contested divorce, the negotiation process may help them reach a favorable settlement before the case goes to trial.
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Property and spousal support
In Alabama, there are two types of property in a divorce: separate and marital. Marital property is subject to equitable distribution, while separate property is not. All property acquired by a couple during their marriage is considered marital property. Property acquired before marriage or through inheritance is generally considered separate property. However, separate property can become marital property if, for example, one spouse invests time and money into maintaining or improving the property. In such cases, the court may deem it marital property.
Alabama is an equitable distribution state, meaning that property and debts shared by divorcing parties are divided in a way that is fair and equitable, but not necessarily equal. The judge will take into account various factors when deciding how to divide the property, such as the length of the marriage, contributions by each spouse, and the overall financial situation of both parties.
If you and your spouse agree on how to divide your property and debts, these terms can be included in your uncontested divorce documents, which will be reviewed and approved by the court. However, if there is property that needs to be divided and you require financial support from your spouse, this will have to be worked out in an out-of-court settlement or a series of court hearings.
In Alabama, alimony, or spousal support, is not awarded in every divorce. It is intended to help the receiving party avoid financial distress following the divorce and ensure they can maintain financial stability. To receive alimony payments, one spouse must prove their financial need, and the other spouse's ability to pay. There are several types of alimony in Alabama:
- Rehabilitative alimony is awarded on a short-term basis to support a spouse for a limited time while they pursue a career, especially if they have been out of the job market for most of the marriage.
- Periodic alimony, or temporary spousal support, is set for a specific period by the courts and ceases once that time has ended.
- Alimony in gross is typically a lump-sum payment made to one spouse to help distribute assets evenly following a divorce. It can also be split into several spousal support payments determined by the courts.
- Permanent alimony is less common and is reserved for couples who have been married for a significant amount of time, such as 20 or more years, with one spouse showing a substantial financial need for support.
To receive alimony, an individual must petition the court by filing a motion for temporary support. The divorcing parties can also agree on temporary support during the divorce process. It is important to consult an experienced attorney to ensure that the courts receive and review all essential facts regarding potential alimony.
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Frequently asked questions
Common-law marriage in Alabama is defined as a union between two people that is not formalized in the customary manner as prescribed by law but is created by an agreement to marry. Common-law marriage was abolished in Alabama on 1 January 2017.
If you have a common-law marriage, you must get a regular divorce through the court system. You must meet the residency requirements of the state in which you wish to file for divorce. Alabama requires that at least one spouse must have been a bona fide resident of the state for at least six months prior to filing.
If you and your spouse agree on everything, including dividing assets, custody, and child support, you can file an "uncontested" divorce with the court. If you and your spouse don't agree, you will have to file a "contested" divorce in court.
