Divorce Definitions

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The following are definitions and descriptions of various terms you may have heard used in connection with divorce and other family law related cases.  The definitions and descriptions given here are only brief summaries. Although most of these terms have a more significant legal meaning and are subject to various interpretations, these summaries may give you a better idea and better understanding of what these terms mean when used in connection with divorce and family law cases.  These definitions relate to cases in Alabama. If your case is pending in another state, these terms may not exist or they may have different definitions. Therefore, you should consult with an attorney licensed to practice the state where your case is pending.

 

 

1.    Alternatives to Divorce

 

a.     Legal Separation

 

Sometimes people having serious marital difficulties are not prepared or ready to proceed with a divorce, but have physically separated from each other. If however, these same individuals need financial support from their spouse (child support or maintenance ("alimony")), they may want to file for a legal separation.

 

The procedure for filing for legal separation is identical to filing for a divorce.

 

Once the other party has been served with the Petition for Legal Separation, the party who filed may petition the court for temporary financial support.

 

At the conclusion of a legal separation case, a Judgment for Legal Separation is entered. However, once a case is over, you are still married. Customarily, property or debt is not divided in Legal Separation case. If you desire to obtain a divorce at a later time, you must file a new case and start the process again.

 

Annulment*Officially called a Declaration of Invalidity of Marriage. There may be grounds to declare your marriage invalid. The grounds for annulment can be shown by proving one of the following:

 

                                                      i.        A party lacked the capacity to consent to the marriage at the time the marriage was solemnized. (i.e mental incapacity, influence of alcohol or drugs.)

 

                                                     ii.        A party was induced into the marriage by force or duress

 

                                                    iii.        A party was induced into the marriage by fraud involving the essentials of the marriage. (this does not include a misrepresentation of personal wealth or social standing)

 

                                                     iv.        A party lacks the physical capacity to consummate the marriage by sexual intercourse and at the time the marriage was solemnized the other party did not know of the incapacity.

 

                                                      v.        A party was aged 16 or 17 and did not have the consent of his parents, guardian or a judge.

 

                                       vi.      The marriage was prohibited (i.e. party under 16, one of was married to someone else at the time of this marriage)

 

 

 

2.    Divorce

 

a.     Grounds for DivorceYou must prove a specific ground to obtain a divorce. There are several grounds one may allege, such as: irreconcilable differences, mental cruelty, physical cruelty, adultery and abandonment.

 

The grounds for divorce do not relate to how the court will eventually divide property. Therefore, if you establish that the grounds of adultery exist, you may obtain a divorce but it will not be considered when the division of marital assets is addressed.

 

The majority of divorce cases use the grounds of irreconcilable differences.

 

b.     Irreconcilable DifferencesTo establish the grounds of irreconcilable differences, you must prove all of the following:

 

                                                      i.        That you and your spouse have been living separate and apart for a period of 2 years.*(living separate and apart does not necessarily mean that the parties are living in separate residences. The parties may still be residing at the same home but are not living as husband and wife. For example, they are not sharing the same sleeping quarters and are maintaining separate financial and social lives)

 

                                                     ii.        That irreconcilable differences have caused an irretrievable breakdown of the marriage.

 

                                                    iii.        Future attempts to reconcile the differences would be impracticable and not in the best interests of the family.

 

* The parties may sign a written stipulation waiving the 2 year requirement if they have been living separate and apart for a period of 6 months or more.

 

c.      You do not have to testify or prove specifics. The fact that "irreconcilable differences" occurred will establish the grounds for divorce.

 

 

 

3.    Custody and Visitation

 

There are several terms used when discussing issues related to children. The following are some of the most common. However, keep in mind that most issues regarding children are complex and each of the following terms has a more complex legal definition. These definitions are intended to give you a general understanding of the terms you will hear if you become involved in a child custody case.

 

a.     Joint CustodyJoint custody primarily relates to the major decision making for the minor children. It does not have to do with where the children will physically live or when they will see each parent. For example, issues involving religion, health and education are considered major decisions. Joint custody is premised on a theory that the parents will be able to set aside any personal conflicts they have and will be able to make joint decisions for their children. If joint custody will not work, then one of the parents will be awarded sole custody.

 

b.     Sole CustodyThe person awarded sole custody will have the authority to make the major decisions involving the minor children. However, just because one party is awarded sole custody, does not mean that the other parent is totally restricted from participating in these decisions or objecting to the decisions. The parent without sole custody may contribute his or her thoughts or may object if he or she feels that the decision is not in the child's best interest.

 

In joint custody situations, if the parents are unable to reach a decision on a major issue or if they have a disagreement regarding when the child will be with each parent, the parents must attempt to mediate the issue before bringing the issue to court. If one party has sole custody and the other feels that the decision made by parent having sole custody is not in the child's best interest, the issue may be brought immediately to court, rather than first participating in mediation.

 

c.      Residential or Physical CustodyThese terms are often used interchangeably. Often, one party is deemed to be the custodial parent and the other party is the non-custodial parent. The custodial parent is said to have the residential or physical custody of the minor child. Customarily, the non-custodial parent would have a specific visitation schedule and would pay child support to the custodial parent. There are several exceptions and deviations to this definition.

 

d.     VisitationAs mentioned above, the non-custodial parent is usually granted a visitation schedule. This is specific time for that parent to spend with the minor child. Often, a visitation schedule includes holiday schedules and extended periods throughout the calendar year such as summers and spring vacations.

 

e.     Guardian Ad Litem, Child Representative, Attorney For Minor ChildIn most cases where the issue of custody or visitation is in dispute, the Judge will appoint an attorney to serve as a Guardian Ad Litem, Child Representative or Attorney for Minor Child. These various titles come with different responsibilities. However, the general purpose of this individual is to protect and advocate the position of the minor child. This attorney will bill for his or her time separately and the Judge will determine how much each party must contribute to these fees.

 

 

 

4.    Property

 

During divorce and declaration for invalidity cases, property deemed to be marital property is awarded and the responsibility for debt is allocated to each party. Alabama courts divide property and debt equitably (also called "just proportions"). Simply, the Court will divide the property and debt based on what it believes to be fair. Many factors contribute to the Court's decision. One factor not to be considered is marital misconduct (i.e. adultery).

 

a.     Marital PropertyAside from several exceptions, any property or debt acquired during the time that a couple is married is presumed to be marital property and subject to division by the court.

 

Some of the exceptions include property inherited or received as a gift and property acquired after the entry of a judgment for legal separation.

 

The burden of showing that certain property falls under one of the exceptions is on the party who is seeking to rebut the marital property presumption.

 

The term "property" includes more than simply tangible items such as houses and bank accounts. For example, a party's interest in a personal injury lawsuit could be considered a marital asset.

 

 

 

5.    Child Support

 

Although there are several exceptions, the party who is NOT awarded the residential or physical custody ("non-custodial parent") of the minor children often pays child support to the party who does.

 

There are specific reasons for the Court to deviate from the guidelines. However, the Courts customarily use the following guidelines when determining child support:

 

Child support is calculated using one's net income from all sources. Net income is determined by taking the gross income and then subtracting all mandatory deductions such as: Taxes, union dues, health insurance for minor child. Voluntary deductions, such as contribution to 401(k) accounts, are not deducted.

 

Income may be generated and used for child support purposes from several sources other than from employment. For example, rental property income or income generated from investments may be considered when calculating child support.

 

 

 

6.    Removal

 

In divorce cases, if one parent objects, the other parent may not permanently move the minor child out of the state of Alabama without permission by the Court. If the parties share joint custody, this issue must first be mediated. If mediation does not resolve the issue, then a judge will ultimately decide if it is in the child's best interest to be permanently removed from the state of Alabama and the other parent.

 

7.    Maintenance (formally called alimony)

 

In divorce, legal separation and declaration of invalidity of marriage cases, the court may award maintenance to one of the parties. Maintenance is also sometimes called alimony or spousal support.

 

a.     Types of MaintenanceThere are several types of maintenance. For example, there is permanent maintenance, rehabilitative maintenance and reviewable maintenance. The process of determining what type of maintenance and whether the court will award maintenance is complex. Below are very general definitions of the types of maintenance to better help you understand the terms if you hear or read about them.

 

                                                      i.        Permanent maintenance is to last for the payee's entire life.

 

                                                     ii.        Rehabilitative maintenance indicates that although maintenance is awarded, the payee must make efforts to rehabilitate themselves so that they eventually become financially independent. Once this occurs, the maintenance may be terminated.

 

                                                    iii.        Reviewable maintenance is awarded for a specific period of time and then the court reevaluates to see if the maintenance should continue.

 

There are several factors that a Court will review when deciding if maintenance is appropriate. For example, the duration of the marriage, the parties incomes, the standard of living that was established during the marriage, the age of each party and the physical and emotional condition of each party are just a few of the factors that a Court will consider.

 

b.     Termination of MaintenanceAll types of maintenance, unless indicated otherwise in a divorce decree, will automatically terminate upon one of the following events:

 

                                                      i.        The death of the payor

 

                                                     ii.        The death of the payee

 

                                                    iii.        The payee's remarriage

 

                                                     iv.        The payee's cohabitation with another person on a resident, continuing conjugal basis.

 

 

 

8.    Discovery

 

During all civil cases, including divorce, each party may conduct Discovery. The purpose of this process is to allow each party to use certain means to gather information. Some of the tools of discovery are:

 

a.     InterrogatoriesThese are specific written questions that are submitted by one party to the other and which must be answered within a certain period of time. These questions may focus on such issues as income, ownership in certain property, where bank accounts are maintained, status of health, likelihood or receiving any gifts or inheritance.

 

b.     Requests For ProductionWith these requests, one party is asking the other to physically produce documents. Such documents may include bank statements, purchase contracts for property, credit card statements.

 

c.      SubpoenasEach party may request that certain 3rd parties produce specific documents. For example, one may send a subpoena to the other party's employer requesting copies of all pay stubs and any W-2 statements issued.

 

d.     DepositionsEach party is entitled to take the deposition of the other party or of any relevant witnesses. A deposition is when one is placed under oath and asked a number of questions. A deposition is commonly taken at an attorney's office. The questions and answers are recorded and typed by a court reporter who then transcribes the testimony from the deposition into a written transcript.

 

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