Divorce I. 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 exist 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 which keep one spouse from entering the normal marriage state. II. 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 his ruling on the oral or written testimony of only the party who filed the suit. III. Non-Contested Divorces The most common type of 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. IV. Child Custody and Visitation Rights In a divorce action, the court determines custody and visitation of the minor children of the parties. The determination is based on the discretion of the court guided by consideration of he following factors: best interest and welfare of the children, fault of the parties, character and conduct of each parent, age and sex of he children, past care and custody of the children, economic conditions of the parents, preference for the children, and agreement of the parents. The parent who does not have the children living with him or her (non-custodial parent) has the right to visit the children or have them visit him or her. Generally, visitation rights are set by the judge and are generally expressed in terms for reasonable times and places upon reasonable notice; but a divorce decree can also set out specific visitation privileges at certain times and places. For example, every other weekend, certain holidays, birthdays, et cetera. An agreement between the parties can also help you set out a schedule. The court in its own discretion may upon request, award visitation rights to the grandparents of the children. V. Child Support Once the determination is made that a divorce should be granted, the primary concern of the court becomes the well-being of the minor child of the parties. It is the responsibility of the court to determine the amount that the non-custodial parent is responsible to contribute for support of the minor child. The court must use the Child Support Guidelines adopted by the Alabama Supreme Court in setting the amount of child support, unless the court specifically finds that following the Guidelines would be unjust and inappropriate. The court combines from the Guidelines the applicable amount of child support for the number of children of the marriage based upon that income, adjusts this amount for work-related child care expenses and health insurance premiums, and then assigns a portion of that support amount to the non- custodial parent based on his/her percentage share of the combined income. The most important factors to be considered by the court in making an award of child support are the needs of the children and the parent's ability to earn and pay his/her portion of the support. A parent's obligation to pay child support may be based on his or her demonstrated ability to earn a certain amount of money, not what that parent is choosing to earn. Child Support is paid until the child reaches the age of majority, but can be extended beyond that time under certain circumstances, such as during post majority education (college), or where the child is mentally or physically disabled. NOTE: This information was directly provided by a brochure published by the Alabama State Bar. It is based upon Alabama law and is used to inform, not to advise or provide legal advice.