Filing for divorce can be a stressful and time-consuming endeavor, but with enough information and the right attorney, divorce does not have to be an intimidating process. In the best-case scenario, your divorce will be uncontested. In an uncontested divorce, parties are able to agree to the terms of divorce and reach a settlement, without a lengthy period of negotiation or a trial. However, if the parties cannot reach an agreement, the divorce will be contested. Contested divorce is a more detailed and complex process than uncontested divorce, depending on the specific facts and circumstances of the case. The contested divorce process may vary from case to case, but there is a general step-by-step framework to ensure that your contested divorce is finalized as smoothly as possible.
1. Gather key information on your relationship
Before going forward with a divorce complaint, it’s important to gather pertinent information about your relationship and have it organized before the proceedings. Requisite information includes, but is not limited to, the assets and debts retained during the marriage, information about any children and childcare responsibilities, and the reason(s) for the divorce. In Alabama, a divorce may be no-fault or fault-based. A no-fault divorce might be filed for such reasons as incompatibility or irreconcilable differences, whereas a fault-based divorce is limited to a set of reasons laid out by law, including adultery, etc. Before taking any legal action, make sure you qualify to file for divorce in Alabama. To legally file for divorce in Alabama, you or your spouse must have been a resident of the state for at least 6 months prior to filing for divorce.
2. File a complaint
After gathering the necessary information, the first legal step in the divorce process is to file a complaint with your County Court. The divorce petition must be filed either in the county in which the defendant resides, or the county in which the separation occurred. The complaint must include the following specific information:
- Name, age and residency of both parties
- Marriage date and separation date of the parties
- Names of minor children and their birth dates
- Grounds for divorce
- Acknowledgement that the parties have assets and debts for division
- A plea for the court to take jurisdiction of the case and provide the requested relief
The complaint may also include additional information, including details that will potentially be contested, requests for child support or alimony, or a suggested division of property.
After the complaint is filed, the parties may resolve the divorce amongst themselves at any point. There is no required timeline to finalize.
3. Service of the complaint
After filing the divorce complaint with the court, the plaintiff must serve the complaint on their spouse. Although service is generally a simple process, an uncooperative spouse can frustrate this step. There are several methods of serving the complaint on your spouse. If your spouse is being difficult and attempting to avoid service, you may need to hire a private process server, have the court send the document by certified mail, invoke the help of the sheriff, or use a more unorthodox method like publishing the complaint in the newspaper. What’s important is that the complaint is served in a such a way that the defendant is considered reasonably on notice of its filing.
4. Defendant has opportunity to answer
Once the complaint is legally served on the defendant, they have 30 days to file an answer to the complaint. The answer is a crucial step in the divorce process, because it can determine whether the divorce is uncontested or contested. The defendant might fail to file an answer, which results in a default judgement for the plaintiff and, usually, a finalization of the divorce (although, this may not be the end of the proceedings because a defendant may file a Motion to Set Aside Default Judgement). It’s possible that the defendant will answer in agreement, and the parties will reach a settlement without any further proceedings. However, if the defendant disputes any part of the complaint, the divorce will be contested and further negotiations will have to take place.
The following two steps in contested divorce proceedings can vary greatly in length and substance from case to case. During the discovery period, the opposing parties and their attorneys will request info from each other relevant to the divorce, and neither spouse can withhold information that might be used as evidence at trial. The parties will build their cases in preparation for negotiation/mediation.
Usually, judges will try to encourage the parties to settle and avoid taking the case to trial, if possible. The parties will negotiate or participate in mediation on certain disputed terms of the settlement and try to reach amicable terms for both spouses. These negotiations can take many forms; how exactly to proceed is the personal preference of the parties, and attorneys will try to best fit their clients’ needs. During this period, judges may issue a pre-trial order instructing the parties not to dispose of any marital assets, etc. Parties may file specific motions to govern the actions of their spouse during this period as well, and the judge may hold temporary hearings to decide how issues like child custody will be handled in the interim before the divorce is finalized. Often, parties are able to reach an agreement in the negotiation phase, and the contested divorce will be finalized before trial.
7. Trial and judgement
However, if the parties are not able to reach an agreement on their own accord, the contested divorce will go to trial and be decided by a judge. The parties may present documents, expert witnesses, and testimony in favor of their case. After all the evidence is presented, the judge will issue a judgement for divorce. The judgement officially decides the terms of the divorce, and resolves any issues that have not been agreed upon. Once a final decree has been issued, the parties must agree to the judgement, or face serious consequences. It is possible for the parties to appeal the judgement within 42 days its issuance, however in most cases this final judgement is the end of the contested divorce process. Generally, a contested divorce is resolved within a year to 18 months after a complaint is filed. However, even if many issues are contested, the process may be faster if negotiations go swiftly with the help of a capable attorney.
Contested divorces are never easy, but there are several safeguards in place to ensure that your divorce will be finalized even if your spouse refuses to cooperate. Ex parte divorce, or divorce by one party, is possible to achieve. Your spouse cannot avoid divorce proceedings by leaving the state, dodging service, or refusing to participate; if you play by the rules, the law is on your side.
About the Authors: This article was co-written by Katie Pickle and Chris Reid. Katie is a law clerk at the Reid Law Firm and a 1L student at Emory Law School. She may be reached at Katie.ReidLawFirm@gmail.com. Mr. Reid is general practice attorney in Birmingham, Alabama. He has worked for Republican leadership in the United State House of Representatives in Washington, D.C., and was a health policy advisor to the governor of Alabama. You can contact him by email at firstname.lastname@example.org or by phone at 205-913-7406. A full description of his practice areas is available at www.reidlawalabama.com.
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