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Alabama Divorce Law

1.               Introduction

The law of divorce in Alabama (or for that matter in any state) comes down to four main issues:

  • parenting

  • division of property and debts

  • child support

  • spousal support.

The actual legal principles of divorce law are relatively simple.  Aside from child support, which in most cases flows from the application of a simple mathematical formula, trial courts enjoy broad discretion in divorce matters, and appellate courts are reluctant to limit that discretion.[1]

The two issues that make divorce complicated are what can be called “Hurdle Major” and “Hurdle Minor.”  Hurdle Major is the raw, searing emotional content of nearly every issue presented in divorce.  In all but the rarest of divorces, this emotional intensity – oft-changing feelings of love, regret, guilt, tenderness, euphoria, anger, betrayal, relief, depression, bitterness, abandonment, hatred, freedom, and fear -- pops up at nearly every turn, stealing the focus from the legal issues that must be decided, and poisoning the kind of rational examination that would move the divorcing spouses toward a mutually acceptable resolution.

“Hurdle Minor” is Uncle Sam – the tax principles that color nearly every divorce settlement.  Tax is particularly important – and sensitive -- when one of the spouses has an income that is materially higher than the other.  It is also important when they have owned a house or houses together that have increased in value, or for that matter if they have ever owned any property that has increased in value.

Fair warning:  this paper doesn’t deal with Hurdle Major or Hurdle Minor.  It concentrates on the legal principles of divorce.  For information on Hurdle Major, you may want to check in at www.divorceinfo.com, where there's a full examination of all these issues. For information on Hurdle Minor, check out www.divorceinfo.com/taxes.htm.

This paper focuses on the four main issues outlined above, parenting, division of property and debts, child support, and spousal support. In addition, for convenience, the paper also looks at Alabama’s approach to common law marriages.

Click here for information on uncontested divorce in Alabama

For a thorough examination of all the issues divorcing couples confront, I can say in all modesty that the best source available anywhere is my web site, http://www.divorceinfo.com. Divorceinfo.com is the equivalent of a 1000-page reference book about divorce, all free, and all organized to allow the user to find the material he or she needs quickly and easily. You’ll be in good company at DivorceInfo; the site gets about 25,000 page views per day.

2.               Common Law Marriage

If a man and a woman intend to be married, they may be married even if they never said “I do.” The test in Alabama is the intent of the parties. No ceremony and no particular words are necessary to constitute a valid common-law marriage. Specifically, the elements required for a common law marriage are (a) capacity (both spouses must be at least 14 and mentally competent); (b) present agreement or mutual consent to enter into the marriage relationship; (c) public recognition of the existence of the marriage (calling each other "my husband" and "my wife"); and (d) cohabitation or mutual assumption openly of marital duties and obligations."[2]

To constitute a valid common-law marriage, there must be mutual consent between the parties to be husband and wife, followed by cohabitation and living together as man and wife.[3] Alabama doesn’t recognize trial marriages. As the court in one case put it, “marriage, common-law or ceremonial, is not transitory, ephemeral, or conditional, but contemplates a present, permanent status. An expression of intention to marry in the future, followed by cohabitation, does not create the common-law marital status.”[4]

By the same token, once a couple is married at common law, their marriage does not end just because one of the spouses wishes this to be so. As one court put it, "There is no such thing as being a 'little bit' married."[5]

3.               Parenting

3.1.        Custody[6] as Between a Parent and a Third Party

A child’s natural parent has a prima facie right to the custody of that child.[7]  When a third party seeks to obtain custody over a parent’s objections, he or she must prove that the parent is unfit for parenthood.[8]  The presumption is overcome, however, by evidence of neglect or abuse on the part of the parent.[9]  And the presumption no longer applies when custody has already been awarded to a non-parent, either because the natural parent voluntarily gave up custody[10] or because the court awarded it to the non-parent.  In this case, the natural parent must show that a change would materially promote the child’s best interest. [11]

3.2.        Custody as Between Parents

Before 1981, Alabama presumed that young children, particularly young girls,[12] belonged with their mothers.[13]  In that year, however, the Alabama Supreme court struck down this “tender years” doctrine as unconstitutional in the landmark case of Ex parte Devine.[14]

The parties now stand (at least theoretically) on an equal footing in a custody determination.  The deciding  factor is now simply the best interest and welfare of the child. [15]  The Devine court listed 12 factors:

a)       Sex and age of each child.

b)       The emotional, social, moral, material, and educational needs of each child.

c)       The respective home environments offered by each party.

d)       The characteristics of each party seeking custody, including age, character, stability, mental and physical health.

e)       The capacity and interest of each parent to provide for the emotional, social, moral, material and educational needs of the children.

f)         The interpersonal relationship between each child and each parent.

g)       The interpersonal relationship between the children.

h)       The effect on the child of disrupting or continuing an existing custodial status.

i)         The preference of each child, if the child is of sufficient age and maturity.

j)         The report and recommendation of any expert witnesses or other independent investigator.

k)       Available alternatives.

l)         Any other relevant matter the evidence may disclose.[16]

Lee’s note: the Devine factors may be the theoretical standard, but in reality, mothers still enjoy a clear preference in contested custody cases. As a practical matter, a father wishing to establish custody over the objection of the mother probably has to prove that she is unfit as a parent.

This takes the form of showing that she has engaged in a continuing pattern of behavior that either places the children in repeated danger (such as driving drunk or waving loaded handguns around) or communicated to the children some signal about how to live their lives that’s dreadfully incorrect (such as repeatedly offering them illegal drugs or engaging in promiscuous sex in their presence). Absent a persuasive showing of one or both of these behaviors, most judges in Alabama seem reluctant to wrest custody away from a mother who wants it.

Custody is in the sound discretion of the trial court.[17]  Under the “ore tenus”[18] rule, any appellate court must presume that the trial court correctly applied its discretionary authority to act in the children’s best interests. Unless the trial court's decision is not supported by the evidence and is clearly and palpably wrong.[19]

3.2.1.        Conduct of One of the Parents

Alabama courts consider the fault of the parties in determining custody.[20]  Mere adultery on the part of one of the parties, however, does not result in an automatic award of custody to the other.[21]  The key question is not simply whether adultery or other wrongdoing has occurred, but rather whether the behavior complained of has had (or presumably would have) a detrimental impact on the child.[22]  The same analysis governs in cases of cruelty to the other spouse,[23] drunkenness,[24] marijuana use,[25] homosexuality,[26] and religious beliefs and practices.[27]  That is, the court will consider the conduct of one of the parties in determining custody, but the primary question will be not simply whether questionable or immoral conduct occurred, but rather what effect that behavior has had on the children.

3.2.2.        Preference of the Child[28]

The preference of a child for one parent over the other is a relevant consideration in custody, but not a controlling one.[29]  If the testimony of a competent child in a divorce action about his or her preference is relevant, otherwise admissible, and not merely cumulative, it must be admitted for purposes of determining custody.[30]  The older and more mature a child is, the more likely that child’s preferences will be given weight in deciding custody.

My “rule of thumb” is that below age seven, a child’s preferences are irrelevant and that a party who attempts to elicit the testimony of the child does so at his or her peril. At age 14 or above, the preferences of the child will be given almost persuasive weight in a contested custody determination, particularly in cases where the child's reasons for the preference seem mature and appropriate. Between ages 7 and 14, there is a sliding scale where the weight given the preferences of the child will vary depending on the age, maturity, and perceived independent judgment of the child.

3.2.3.        Mental Health

Serious emotional disturbance and psychiatric disorders are relevant factors in custody determinations.[31]  If both parents struggle with mental health problems but only one seeks professional help for the problem, the refusal of the other to get help may be relevant in a custody decision.[32]  An opposing party can force a person’s therapist to testify about the person’s mental health.  The psychiatrist-patient privilege is subordinated to the right of a child to a proper determination of custody.[33]

3.2.4.        Leaving It Alone

Alabama has a “rule of repose” when it comes to custodial arrangements for children. The seminal case in this area is Ex Parte McClendon.[34] The McClendon court said that the party seeking modification of custody must “prove to the court's satisfaction that material changes affecting the child's welfare since the most recent decree demonstrate that custody should be disturbed to promote the child's best interests. The positive good brought about by the modification must more than offset the inherently disruptive effect caused by uprooting the child. Frequent disruptions are to be condemned." The court went on to say that “the parent seeking the custody change must show not only that [he or she] is fit but also that the change of custody "materially promotes" the child's best interest and welfare.”[35]

3.3.        Visitation

Trial courts have broad latitude in providing for visitation rights.[36]  Whether courts provide for a specific schedule[37] or something as general as the right to visit the children and have them visit the noncustodial parent at reasonable times and places commensurate with the children’s health, education, and welfare[38] is within the court’s discretion. Courts have discretion to provide for visitation rights, even if both parents had previously agreed to no visitation.[39]

Courts realize that sometimes children simply parrot the wishes of a custodial parent, and they realize that sometimes the child is simply too immature to form a considered opinion.  Sometimes children express fears or unwillingness to visit their other parent without any reasonable basis or foundation, and in these cases, the trial court is within its discretion to order visitation even over the child’s objections.[40]  Where one parent interferes with the orderly visitation schedule, the court may by statute[41] require that parent to post a performance bond to guarantee compliance with the court’s orders.[42]

3.3.1.        Visiting Rights for Grandparents.

Grandparents have no common law rights to access with their grandchildren.[43]  Alabama has a statute that purports to permit a trial court to award visitation to grandparents,[44] but the constitutionality of that statute is in grave doubt. The problems for the grandparents visitation statute began when the U.S. Supreme Court struck down a much broader statute in Washington State, in the case of Troxel v. Granville.[45]

The Alabama Civil Court of Appeals has tackled the issue of whether Alabama's narrower statute might pass constitutional muster, in the closely reasoned case of L.B.S. v. L.M.S.[46] The best way to describe the state of the law in Alabama on grandparent visitation today is that grandparents have the right to petition for visitation, but them must show by clear and convincing evidence that substantial harm would come to the child if the requested visitation is not granted. That's a tough standard.

4.               Division of Property and Debts

4.1.        Equitable Distribution

Alabama is a so-called “equitable distribution” state.  This means that the division of property and debts between the divorcing parties should be fair and equitable, but not necessarily equal.[47]  There is no fixed standard to divide property,[48] each case will be decided on its facts,[49] and the trial court’s discretion will not be disturbed on appeal without a showing of clear abuse.[50]

The division of property must be graduated according to the particular facts and circumstances of each case.[51]  The court may divide jointly owned property according to the equities of the case.[52]  It may award property to one spouse that was owned during the marriage by the other spouse,[53] it may award property to one spouse even that was owned during the marriage by the other spouse’s corporation,[54] and it may order property sold to bring about an equitable division of property.[55]

The court’s discretion extends to a ruling awarding the wife a little less than half of the husband’s estate, considering evidence that the husband had engaged in misconduct.[56]  It also extends to a decision to give the wife virtually all the marital estate, in view of the short length of the marriage (3 ½ years), evidence that the wife had contributed the property, and evidence that the husband had abused her.[57]  It does not extend, however, to an award of about 30 percent of the marital estate to the wife, given her status as a homemaker during most of a lengthy marriage, given that the marital residence was built on land she inherited, and given that significant funds invested in the marital residence came from the sale of other land she had inherited.[58]

4.2.        Separate Property

The question here is whether property contributed by one of the parties should be included in the marital estate for purposes of an equitable division.  Generally, separate property acquired before the marriage or by gift or inheritance during the marriage may be excluded from the marital estate if neither the property nor its income has been used for the common benefit of the parties during their marriage.[59]

So where a wife exercises exclusive dominion and control over property and excludes the husband from any role with it, and where the husband derived no benefit from the property by virtue of the marital relationship, the property is considered the wife’s separate estate.[60]  However, where the parties regularly use property acquired before marriage for the common benefit of the parties, it is available for consideration in dividing property.[61]

4.3.        Length of the Marriage

Generally, property division involving a short-term marriage is relatively straightforward.  When few or no joint assets have been accumulated, the tendency is to “unwind” the marriage, that is, to return the parties to the financial position in which they arrived at the marriage.[62]  The more the parties have “co-mingled” their assets, however, the more difficult this “unwinding” may become.

4.4.        Finality of Decree

A property settlement is not subject to modification because of changed circumstances.[63]  And a property settlement is final after 30 days.[64]  Alabama Rule of Civil Procedure 60 provides an exception, however, giving the trial court discretion to correct clerical errors to account for mistakes, excusable neglect, newly discovered evidence, or fraud.[65]  Also, if a property division is ambiguous, the court may be required – even after months or years have elapsed -- to clarify questions of how property is to be divided, or how property is to be sold.[66]

4.5.        Particular Assets

4.5.1.        Real Estate

The disposition of real estate often presents itself in the guise of the marital home.  And it is in dealing with the marital home that courts often fall back on the principle that they are to devise an equitable distribution, not necessary an equal one.[67]  Courts can get creative in dealing with the family home.  For example, the wife may be awarded the “use and possession” of the home for a period of time, or for her life.  Or she may be given the right to stay in the home until she remarries or until all the children reached the age of majority, whichever happens first.[68]

4.5.2.        Retirement Plans

The court in a divorce may include in the estate of either spouse the present value of any future or current retirement benefits, subject to several limitations:

a)       The spouse owning the benefits must have a vested interest in them or be receiving them on the date the divorce action is filed.[69]

b)       The parties must have been married for 10 years, during which the retirement benefit was being accumulated.[70]

c)       Any retirement benefits accumulated before the marriage, including any earnings produced by such benefits, must be excluded.[71]

d)       The total benefit extended to the non-covered spouse may not exceed half the benefit to be considered.[72]

e)       The payout to the non-covered spouse may not begin until the covered spouse begins receiving benefits or reaches age 65, whichever occurs first.[73]

A plan participant cannot be ordered to designate his divorced wife as beneficiary of his retirement benefits after his death. The court ruled that this could potentially transfer more than half the husband's retirement to the wife.[74]

5.               Child Support

5.1.        The Guidelines

Child support is one of the few things in divorce that is relatively certain.  For the majority of divorces involving minor children, child support is a straightforward application of a formula that is entirely a creature of statute,[75] and most anyone can do the calculation easily.  Alabama uses a model called “income shares” to figure child support.  The formula turns on the following factors:

a)       The combined gross income[76] of the mother and the father.

b)       Each parent’s gross income as a percentage of the combined gross income.

c)       Any pre-existing obligation to pay child support or alimony.

d)       The number of children under 19.

e)       The amount paid for work-related child care, subject to some limitations provided by the state Department of Human Resources.

f)         The amount paid for health insurance for the children, and the party responsible for paying it.

5.2.        Deviation from Guidelines

The child support guidelines are mandatory, and the trial court may deviate from them only where the parties have entered a fair, written agreement establishing a different amount of support and stating the reasons therefor, or upon a written finding on the record that the application of the guidelines would be manifestly unjust or inequitable.[77]  Rule 32 enumerates five non-exclusive reasons courts may, but need not, deviate from the guidelines:

a)       Shared physical custody or visitation rights providing for periods of physical custody or care of children by the obligor parent substantially in excess of those customarily approved or ordered by the court.

b)       Extraordinary costs of transportation for visitation borne substantially by one parent.

c)       Expenses of college education incurred prior to a child’s reaching the age of majority.

d)       Assets of, or unearned income received by or on behalf of, a child or children.

e)       Such other facts or circumstances that the court finds contribute to the best interest of the child or children for whom support is being determined.

Courts have discussed and applied the following other reasons for deviation from the guidelines:

5.2.1.        Income Outside the Range

The guidelines only account for income above $6,600 per year and up to $120,000 per year.  If the income falls outside the range, the trial court has discretion to come up with a figure in its discretion.[78]  This discretion is not unbridled, however.  It must relate to the reasonable and necessary needs of the children.[79]

5.2.2.        Expenses of New Family

The expenses required to support a second family are a proper consideration in determining whether to deviate from the guidelines,[80] but a father’s primary legal and moral duty to children is not diminished by his duties to his subsequent “new family.”[81]

5.2.3.        Post-Majority Support

Alabama recognizes two grounds for the continuation of support beyond the child’s reaching the age of 19. The first is for the payment of the expenses of college, and the second is for continuation of support for a disabled child if the disability continues into adulthood.

College support is pursuant to a case called Ex Parte Bayliss, 550 S.2d 986 (Ala. 1989). The key consideration in dealing with Bayliss support is that it has to be applied for before the child reaches the age of 19. If the child has already reached the age of 19 before Bayliss support is requested, courts have believed in the past that they lack the authority to award college support. The expenses included in Bayliss support are tuition, books, room and board, and necessary fees.

Support for a disabled child is pursuant to a case called Ex parte Brewington.[82] The Brewington court quoted with approval a court in New Jersey: “Children who are unable to care for themselves because of their minority are no less entitled to the court's solicitude when they continue to suffer, after they have attained their majority, from a physical or mental disability which continues to render them incapable of self-support. Normal instincts of humanity and plain common sense would seem to dictate that in such cases the statutory obligation of the parent should not automatically terminate at [the age of majority], should continue until the need no longer exists.”[83]

6.               Spousal Support

The purpose of alimony, or spousal support, is to preserve to the extent possible the economic status of the parties as it existed during the marriage.[84]  There is no formula for setting the amount of alimony; instead, the determination of alimony rests in the discretion of the trial court.[85]  Alimony is to be granted only on a showing of need by one party together with the requisite ability to pay by the other.[86]  The facts eligible to be considered in setting alimony include the parties’ respective earning ability and future prospects, their ages and health, the length of the marriage, the value and type of property, and the conduct of the parties.[87]  The trial court can grant alimony even when the recipient spouse doesn’t ask for it in pleadings.[88]

6.1.        Alimony in Gross vs. Periodic Alimony

Alimony in gross is intended to compensate the wife for the present value of her inchoate marital rights, that is homestead, quarantine, and a distributive share, which is payable out of the husband’s present estate as it exists at the time of the divorce.[89]  Alimony in gross is really more in the nature of division of property, but it is included here because it is so often confused with periodic alimony, to the occasional peril of the parties.  There are four key differences between alimony in gross and periodic alimony:

6.1.1.        Ability to Change It

Because alimony in gross is in the nature of property settlement, it is fixed after 30 days has expired.[90]  In fact, in order to be alimony in gross, the time and amount of payment must be certain, and the right to the payment must be vested, or nonmodifiable.[91]  Alimony in gross is not extinguished upon remarriage,[92] while periodic alimony typically is.[93]

6.1.2.        Relevance of Receiver’s Estate

The trial court has discretion to ignore the value of the wife’s separate estate in setting the amount of alimony in gross.[94]  In considering the amount and appropriateness of periodic alimony, on the other hand, the value of the receiver’s separate estate is always relevant.[95]

6.1.3.        Dischargeability in Bankruptcy

Alimony in gross is dischargeable in bankruptcy; periodic alimony is not.[96]

6.1.4.        Tax Effect

Alimony in gross is a nontaxable transaction.  Periodic alimony – if it meets the tests delineated in Section 71 of the Internal Revenue Code, is deductible to the payor and included in the gross income of the receiver.

6.2.        Termination of Periodic Alimony

Periodic alimony typically terminates on the remarriage or cohabitation of the spouse.[97]  What constitutes cohabitation has been litigated continuously.  The term requires some permanency of relationship coupled with more than occasional sexual activity.[98]  Proof that persons are regular social and sexual companions is insufficient to prove cohabitation.[99]  Factors indicating the requisite permanence include sharing a dwelling with a member of the opposite sex, ceasing to date other members of the opposite sex, payment of the former spouse’s debts by the alleged cohabitant, and purchase of clothes for the former spouse by the alleged cohabitant.[100]

The burden of proving cohabitation is on the party who wants the alimony to stop.[101]  But the proof need not be to the level required to prove a common law marriage – the intent of the legislature being to strike a balance between these two situations.[102]

6.3.        Security for Payment of Alimony

As mentioned above,[103] periodic alimony is not dischargeable in bankruptcy.  To provide additional comfort, the paying spouse may be subjected to liens on property awarded in the divorce settlement to secure payment of alimony and other support.[104]

7.               The Mediation Statute

The legislature passed in the Spring of 1996 a “Mandatory Mediation Prior to Trial” statute, now codified as Ala. Code §6-6-20 (copy included as Information Sheet 425). The statute defines mediation, prescribes conditions under which it is mandatory, sets out procedures to deal with domestic violence, and provides restrictions. In general, the statute is carefully drawn and workable. The exception is the statute’s treatment of domestic violence, which is too broadly worded to be usable in practice.

7.1.        What Exactly Does “Mandatory” Mean?

§6-6-20(b) sets out three conditions under which mediation is mandatory.

7.1.1.        At any time where all parties agree.

This doesn’t seem “mandatory” at all. It is actually the most promising environment for mediation.

7.1.2.        Upon motion by any party. The party asking for mediation shall pay the costs of mediation, except attorney fees, unless otherwise agreed.

At first blush, this provision seems to inhibit a request for mediation, because it infers that the requesting party will pay the entire costs of mediation. This need not be the case. It is the nature of mediation that it is, in the final analysis, voluntary. There’s no reason why a party could not request mediation and agree to pay for the mediator’s time for a modest initial exploration of interests. Near the end of the initial period, the parties could explore whether further exploration seems warranted. If it does, they could agree on an equitable arrangement for sharing the cost.

As a mediator, I have a slight preference for some cost-sharing by the parties, even if that sharing is disproportionate. I believe the money each party contributes toward the cost represents an investment in the process that increases each party’s desire to find a mutually workable solution. The preference is only slight, however; I have many mediations in which one of the parties pays the entire cost of the mediation process. Many of these couples mediate successfully to a full and mutually acceptable agreement.

7.1.3.        In the event no party requests mediation, the trial court may, on its own motion, order mediation. The trial court may allocate the costs of mediation, except attorney fees, among the parties.

If practice in domestic court follows the trend in other courts, some but not all judges will eventually opt for a “standing order” requiring an attempt to mediate before the judge is asked to make a ruling. The provision restricting the trial court from allocating attorney fees in mediation is curious. Trial courts have discretion now to allocate attorney fees; did the legislature intend to reduce this discretion?  Apparently so.

7.1.4.        Sanctions

§6-6-20(c) authorizes the imposition of sanctions if a party “fails to mediate,” and the statute references ARCP 37. This is an awkward approach, because the sanctions authorized in Rule 37 all go to compelling discovery. Rule 37(b)(2), however, does permit the trial court to impose “an order treating as contempt of court the failure to obey any orders except an order to submit to a physical or mental examination.”  The same provision also states that “the court shall require the party failing to obey the order to pay the reasonable expenses, including attorney fees, caused by the failure, unless the court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust.”

7.1.5.        Mediation of domestic violence issues.

§6-6-20(d) prohibits the court from ordering mediation “for resolution of the issues in a petition for an order for protection” under the Protection from Abuse Act or any other authority. Quite properly, this provision precludes mediating whether domestic violence occurred or what procedures must be implemented to protect the victim from further abuse. It is important to note what the provision does not say, however. It does not say that the court can’t order mediation of any issues between the parties once a protective order has been requested. To the contrary, the court could easily rule on the petition for a protective order and then order mediation to resolve the substantive issues of the divorce or other proceeding.

7.2.        Dealing with Domestic Violence

7.2.1.        What is “domestic or family violence”?

§6-6-20 instructs each mediator to screen for “domestic violence” but doesn’t define the term. Black’s Law Dictionary defines “domestic” as “pertaining, belonging, or relating to a home, a domicile, or to the place of birth, origin, creation, or transaction,” and it defines “violence” as (1) “unjust or unwarranted exercise of force, usually with the accompaniment of vehemence, outrage or fury;” and (2) “the exertion of any physical force so as to injure, damage or abuse.”

Perhaps more to the point, Ala. Code §15-10-3 defines “Domestic Violence” as “any incident resulting in the abuse, assault, harassment, or the attempt or threats thereof, between family, household, or dating or engagement relationship members.” (Emphasis added). It is estimated that 50% of divorces in America involve domestic violence. Does this mean the legislature intended that 50% of divorce cases referred to mediation can only be mediated by a person specially trained in domestic violence?  One would assume not. Instead, the common-sense assumption is that the legislature intended that a domestic violence expert be called in if the domestic violence, either in the past or in the present, is likely to interfere with the ability of the parties to mediate on an equal basis. If this was indeed the intent of the legislature, this intent should be clarified.

7.2.2.        Screening for domestic or family violence

§6-6-20(f) allows no discretion for the mediator:  “A mediator who receives a referral or order from a court to conduct mediation shall screen for the occurrence of domestic or family violence between the parties.” (Emphasis added). This task is obviously simplified if both parties are represented by counsel. Perhaps it could be as simple as asking both counsel a simple and direct question:  “Do you have any indication of the occurrence of domestic or family violence between these two parties?”  If either or both parties are not represented by counsel, the mediator must be more engaged in the screening process.

7.2.3.        Who is a “certified mediator who is trained in domestic and family violence”?

It is not at all clear what the legislature meant by the term “certified mediator.”  The 40-hour training one must have to serve as a mediator for court-referred cases in Alabama includes two hours of training for awareness of domestic violence, but it hardly makes the participant “trained in domestic and family violence.”  There are training events occurring from time to time around the country to equip mediators to work with couples for whom domestic violence is ongoing. These events run from one to three days; they include training in the whole range of behaviors we group loosely under the term “domestic violence;” and they teach techniques for ensuring the safety of the victim while at the same time creating an environment where the victim and the abuser can mediate on an equal footing. Several Alabama mediators have now completed this training and are now equipped to deal with the unique challenges posed by domestic violence.


 

[1] Hartselle v. Hartselle, 475 So. 2d 860 (Ala. Civ. App. 1985).

[2] Creel v. Creel, 763 So. 2d 943 (Ala. 2000).

[3] Beck v. Beck, 246 So. 2d 420 (Ala. 1971). The Beck court went on to say that “In order for a common law marriage to be created there must be a mutual understanding to presently enter into the marriage relationship, permanent and exclusive of all others, after which there is a public recognition of the existence of the common law marriage.” Id.

[4] Humphrey v. Humphrey, supra.

[5] Adams v. Boan, 559 So. 2d 1084 (Ala. 1990).

[6] I use the term “custody” with deep reluctance but with a sense of surrender to the inevitable.  The term connotes ownership and, perhaps, makes parents more likely to treat the issue as a contest.  It needn’t be.  Both parents have the same fundamental interest, after all, namely the safety, health, and happiness of their child.  In all but the most extreme cases of abuse, their child will be safer, healthier, and happier if he or she has abundant access to the love and care of both parents.

[7] Parks v. Parks, 157 So. 2d 212 (Ala. 1963); J.E.C., Jr. v. J.E.C., Sr., 575 So. 2d 592 (Ala. Civ. App. 1991).

[8] Ex parte Mathews, 428 So. 2d 58 (Ala. 1983); See Ex parte Sullivan, 407 So. 2d 554 (Ala. 1981).

[9] Bowlen v. State Department of Pensions & Security, 288 So. 2d 728 (Ala. Civ. App. 1974) (evidence of neglect on two separate occasions including leaving the child “extremely dirty, with bruises on her back near the top of her buttocks.  She had a rash on her bottom and knots in her thighs.  She had heavy nasal and chest congestion and dried mucus in her nose.”), Id. At 730; Gordon v. Mobile County Department of Pensions & Security, 473 So. 2d 1088 (Ala. Civ. App. 1985) (where mother left the baby at the hospital the night after its birth, kept the birth a secret from family and friends, and exhibited no interest in the child).

[10] When a parent voluntarily relinquishes custody and later attempts to regain custody, he or she has a two-step burden of proof:  first to prove that he or she is a fit parent; and next to prove that a change in custody materially promotes the child’s best interests.  Nicholas v. Nicholas, 464 So. 2d 527 (Ala. Civ. App. 1985).

[11] Ex parte McLendon, 455 so. 2d 863 (Ala. 1984).  This is not the case, however, when the natural parent voluntarily gave up custody on a temporary basis while suffering and recovering from a nervous breakdown and was fully recovered by the time the court awarded permanent custody.  Sterrett v. Sterrett, 231 So. 2d 152 (Ala. Civ. App. 1970).

[12] Keele v. Keele, 347 So. 2d 1360 (Ala. Civ. App. 1977).

[13] Messer v. Messer, 194 So. 2d 552 (Ala. 1967).

[14] 398 So. 2d 686 (Ala. 1981).  The court concluded that “the tender years presumption represents an unconstitutional gender-based classification which discriminates between fathers and mothers in child custody proceedings solely on the basis of sex.”  Id. At 695.

[15] Santmier v. Santmier, 494 So. 2d 95 (Ala. Civ. App. 1986).  See also Hartselle v. Hartselle, 475 So. 2d 860 (Ala. Civ. App. 1985) (custody of twin four-year-old boys to father appropriate because father’s work schedule better suited for the care of the children).

[16] 398 So. 2d at 696-97.

[17] Hood v. Wilson, 496 So. 2d 76 (Ala. Civ. App. 1986).

[18] The Latin translation is “by word of mouth.”  In practical terms, it means that in the majority of cases where the trial court has had the opportunity to see and hear witnesses and observe their demeanor personally, the appellate court will place great trust in the trial court’s perception of the facts.

[19] Marsh v. Marsh, 496 So. 2d 71 (Ala. Civ. App. 1986).

[20] Calhoun v. Calhoun, 179 So. 2d 737 (Ala. 1965) (granting custody to father after hearing evidence of “three acts involving brandishing a butcher knife by the wife in the room with [the husband]”); Johnson v. Johnson, 558 So. 2d 954 (Ala. Civ. App. 1990).

[21] Monk v. Monk, 386 So. 2d 753 (Ala. Civ. App. 1980) (noting that “a parent should not, necessarily, be deprived of child custody for each act of indiscretion or immorality unless such behavior had a detrimental effect on the child.  In the instant case there is no evidence that the mother’s behavior had such effect.”  Id. At 755); Mason v. Mason, 160 So. 2d 881 (Ala. 1964); Altierei v. Altieri, 528 So. 2d 861 (Ala. Civ. App. 1988) (awarding custody to father even though the father admitted to occasions of adultery, and even though that adultery was blamed for causing the divorce); Martin v. Martin, 623 So. 2d 1167 (Ala. Civ. App. 1993) (awarding custody to mother even though she had admitted to an adulterous affair).

[22] Nesmith v. Nesmith, 419 So. 2d 247 (Ala. Civ. App. 1982) (granting custody to wife notwithstanding her adultery, and notwithstanding no finding of marital misconduct on the father’s part, particularly in view of evidence that the wife was a good, loving mother and provided for the needs of the children).  “The moral unfitness of a parent sufficient to deprive her of custody must be such as to have a direct bearing upon the welfare of her child.  A parent will not be denied custody for every act of indiscretion or immorality.”  Id. At 249.

[23] Hawkins v. Hawkins, 121 So. 92 (Ala. 1929) (reversing trial court’s award of equal time custody for an 18-month-old child, in view of husband’s cruelty to the mother).

[24] Bryan v. Bryan, 34 Ala. 516 (Ala. 1859).  “Nearly fifty witnesses are examined upon the subject of the defendant’s intemperance.  A careful examination of this immense mass of evidence convinces us that the defendant was in the habit of drinking freely, and in a few instances to inebriation; but that his drinking had not been carried sufficiently far to disqualify him for business, or materially to interfere with his business habits, or to make his association dangerous to his wife and children, or so pernicious to the latter as to authorize the taking away the custody of them.”  Id. at 518.

[25] Wester v. Wester, 500 So. 2d 1106 (Ala. Civ. App. 1986).  “There was no showing that the father’s occasional use of marijuana, although illegal, was detrimental to [the child].  Therefore, there was no sufficient evidence on this point of conduct to warrant a custody change.”  Id. at 1107.

[26] Bark v. Bark, 479 So. 2d 42 (Ala. Civ. App. 1985) (affirming trial court’s awarding of custody to father at least partially because of lesbian relationship).  “The record contains evidence that the mother, besides working, is devoting great deal of time to her female lover, who spends the night with her frequently . . . the trial court could have reasonably concluded that . . . the mother’s primary concern was not her children but her lover.”  Id. at 43.

[27] Hilley v. Hilley, 405 So. 2d 708 (Ala. 1981) (reversing an attempt to restrict the custodial parent’s religious activities but expressly inviting the trial court to consider whether those activities, which included very late nights during the school week, might be so detrimental to the children as to justify awarding custody to the other parent.  Id. at 711.

[28] This is all about the law.  But please, in the name of children everywhere, let’s not have Mom and Dad dragging their child up to the court to tell the judge they’d “really rather live with Mommy.”  Divorce is a brutal experience for children; in almost all cases, they need and deserve a close and loving relationship with both their parents.  Even if they really would be better off with one parent over another, it’s unfair to them to make them choose.

[29] Alford v. Alford, 368 So. 2d 295 (Ala. Civ. App. 1979).

[30] Ex parte Harris, 461 So. 2d 1332 (Ala. 1984) (reversing for failure to admit the testimony of a 15-year-old child about his preferences).  “While we are sympathetic with the learned trial judge’s attempt to protect the best interest of the family, and although we are reluctant to find reversible error because of the social and policy considerations of allowing children to take sides in court against one of their parents, we are unable to conclude in this instance that the exclusion of the child from the stand was merely harmless error.”  Id. at 1335.

[31] Marr v. Marr, 371 So. 2d 423 (Ala. Civ. App. 1979).

[32] Crosslin v. Crosslin, 494 So. 2d 431 (Ala. Civ. App. 1986).

[33] Matter of Von Goyt, 461 So. 2d 821 (Ala. Civ. App. 1984).  The court was construing the privilege for communications between the wife and her psychologist, as provided in Ala. Code §34-26-2 (1979).  The court ruled that the privilege must yield if the issue of the mental state of a party to a child custody suit is clearly in controversy and proper resolution of the custody issue requires disclosure of privileged medical records.

[34] 455 So.2d 863 (Ala. 1984).

[35] Id. at 865-66.

[36] Dasinger v. Dasinger, 369 So. 2d 813 (Ala. Civ. App. 1979) (approving trial court’s limiting husband’s visitation to 15 days in the summer rather than the 45 days he had requested); Whiteport v. Whiteport, 220 So. 2d 891 (Ala. 1969).

[37] Lipham v. Lipham, 281 So. 2d 437 (Ala. Civ. App. 1973) (second and fourth weekends of each month, Thanksgiving holidays, and the month of July).

[38] Ellison v. Ellison, 261 So. 2d 911 (Ala. Civ. App. 1972).

[39] Durham v. Heck, 479 So. 2d 1292 (Ala. Civ. App. 1985).

[40] Hagler v. Hagler, 460 So. 2d 187 (Ala. Civ. App. 1984); Shires v. Shires, 494 So. 2d 102 (Ala. Civ. App. 1986)

[41] Ala. Code §30-3-6 (1986).

[42] Breazeale v. Hayes, 489 So. 2d 1111 (Ala. Civ. App. 1986) (where noncustodial mother had on occasion failed to return the child to his father within the prescribed time period, resulting in the child’s absences from school).

[43] Morris v. Pressley, 494 So. 2d 87 (Ala. Civ. App. 1986)

[44] Ala. Code §30-3-4 (1989).

[45] 530 U.S. 57, 120 S.Ct. 2054 (2000).

[46] 2002 Ala. Civ. App. Lexis 67.

[47] Cooper v. Cooper, 382 So. 2d 569 (Ala. Civ. App. 1980).

[48] Weatherly v. Weatherly, 469 So. 2d 653 (Ala. Civ. App. 1985).  The trial court had awarded to the wife after a 21-year marriage household furnishings, a $20,000 lot, and $868 per month in alimony, even though the husband’s estate was valued at more than $2,000,000.  The appellate court reversed “after a careful consideration of . . . the wife’s lack of employable skills, no separate estate, length of the marriage, the size of the husband’s estate, and the fault of each of the parties in bringing about the demise of the marriage.”  Id. at 656.

[49] Phillips v. Phillips, 489 So. 2d 592 (Ala. Civ. App. 1986).

[50] Kirk v. Kirk, 371 So. 2d 54 (Ala. Civ. App. 1979.

[51] Brannon v. Brannon, 477 So. 2d 445 (Ala. Civ. App. 1985).

[52] Scudder v. Scudder, 485 So. 2d 743 (Ala. Civ. App. 1986).

[53] Wood v. Wood, 82 So. 2d 556 (Ala. 1955) (awarding to wife ownership of property that had been owned during the marriage by the husband – the court citing evidence that the wife had contributed funds toward purchase of the property).

[54] Scudder v. Scudder, at 745.

[55] Taylor v. Taylor, 408 So. 2d 117 (Ala. Civ. App. 1981), cert. denied, 408 So. 2d 120 (Ala. 1982).

[56] Robinson v. Robinson, 381 So. 2d 637 (Ala. Civ. App. 1980), cert. denied, 381 So. 2d 641 (Ala. 1980).

[57] Kalupa v. Kalupa, 527 So. 2d 1313 (Ala. Civ. App. 1988).

[58] Moore v. Moore, 537 So. 2d 961 (Ala. Civ. App. 1988).  “After evaluating the wife’s limited potential for maintaining her former standard of living, the size of her separate estate, the size of the husband’s estate, the length of this marriage, and the fault of the husband in bringing about the divorce [an affair with another woman], we believe that the property awarded to the wife is clearly inadequate.”  Id. at 963-64.

[59] Johnson v. Johnson, 414 So. 2d 987 (Ala. Civ. App. 1982).

[60] Wren v. Wren, 482 So. 2d 1219 (Ala. Civ. App. 1985).

[61] Wilson v. Wilson, 404 So. 2d 76 (Ala. Civ. App. 1981).

[62] Boone v. Boone, 377 So. 2d 1101 (Ala. Civ. App. 1979).  The parties had married when both were about 60 and had remained married less than three years before their final separation.  “The trial court, in effect, gave to the parties approximately what they brought into the marriage, and we find this to be an equitable division of the parties’ property.”  Id. at 1102.

[63] Russell v. Russell, 386 So. 2d 758 (Ala. Civ. App. 1980).

[64] Hocutt v. Hocutt, 491 So. 2d 247 (Ala. Civ. App. 1986).  The court stated that, given the expiration of more than 30 days after the decree, the trial court was without authority to reopen the case to order a property division, so the court’s attempt to modify the decree was void for lack of subject matter jurisdiction.  See also Rayborn v. Rayborn, 409 So. 2d 865 (Ala. Civ. App. 1982).

[65] A.R.C.P. 60(b)(6) contains a final license:  “any other reason justifying relief from the operation of the judgment.”

[66] Mayhan v. Mayhan, 395 So. 2d 1022 (Ala. Civ. App. 1981) (clarification 18 months after decree).

[67] Roberts v. Roberts, 399 So. 2d 316 (Ala. Civ. App. 1981).  The home was the only significant asset of the 12-year marriage.  The court affirmed the award of the home to the husband, noting that the husband was 77 and in poor health while the wife was 59 (and presumably healthier) and that the husband had bought the home with his own funds shortly before they married.

[68] Bender v. Bender, 560 So. 2d 1053 (Ala. Civ. App. 1989).  The court ruled that the arrangement was in the nature of a property settlement and thus not modifiable, even though the husband was required to continue making payments on the house while the wife occupied it.

[69] Id., § 30-2-51(b).

[70] Id., § 30-2-51(b)(1).

[71] Id., § 30-2-51(b)(2).

[72] Id., § 30-2-51(b)(3).

[73] Id., § 30-2-51(c).

[74] Wheeler v. Wheeler, 2002 Ala. Civ. App. Lexis 262.

[75] Alabama Rules of Judicial Administration, Rule 32 (1993).

[76] If one or both of the parties is self-employed, the correct income is gross business receipts minus ordinary and necessary business expenses.  Klapal v. Brannon, 610 So. 2d 1167 (Ala. Civ. App. 1992).  The court affirmed the trial court’s decision to assume a higher income for the father to account for the benefit he received from accelerated depreciation and to disregard some of the expenses claimed by the father.  Id. at 1170-71.  “Gross income” means actual gross income if the parent is employed to full capacity, or the actual gross income the parent has the ability to earn if the parent is unemployed or underemployed.  Alabama Rules of Judicial Administration, Rule 32(B)(1).  Overtime is included in income.  State ex rel. Smith v. Smith, 631 So. 2d 252 (Ala. Civ. App. 1993) (reversing for the failure of the court to consider “substantial and continuing” overtime).  The court went on to say, however, that “we are mindful that there may be circumstances where overtime pay appears to be an anomaly or is uncertain or speculative, thereby justifying its exclusion from income for purposes of setting child support or deviating from the child support guidelines, in which case the trial court should make a finding to that effect.”  Id. at 255.

[77] State ex rel. Smith v. Smith, 631 So. 2d 252 (Ala. Civ. App. 1993).

[78] DeLaurentis v. DeLaurentis, 628 So. 2d 650 (Ala. Civ. App. 1993) (affirming award of $1,500 per month of child support, based on one minor child, an income of $157,000 for the father, and an income of zero for the mother).

[79] Coleman v. Coleman, 648 So. 2d 605 (Ala. Civ. App. 1994) (affirming award of $2,168 per month in child support, based on three minor children, an income of $105,000 for the father, and an income of $22,500 for the mother); St. John v. St. John, 628 So. 2d 883 (Ala. Civ. App. 1993) (affirming award of $1,200 per month in child support, based on one minor child, an income of $300,000 for the father, and an income of $20,000 for the mother).

[80] Loggins v. Houk, 595 So. 2d 488 (Ala. Civ. App. 1991) (reversing for failure of the trial court to consider evidence of the father’s expenses of three children by subsequent remarriage in determining whether application of the guidelines would be manifestly unjust or inequitable); Allsup v. State ex rel. Salas, 648 So. 2d 597 (Ala. Civ. App. 1994).

[81] State ex rel O’Neal v. Jones, 646 So. 2d 150 (Ala. Civ. App. 1994).

[82] 445 So.2d 294 (Ala. 1983).

[83] Id. at 296.

[84] Madden v. Madden, 399 So. 2d 304 (Ala. Civ. App. 1981); West v. West, 437 So. 2d 583 (Ala. Civ. App. 1983)

[85] Hughes v. Hughes, 362 So. 2d 910 (Ala. Civ. App. 1978).

[86] Madden v. Madden, at 305.

[87] Chambliss v. Chambliss, 587 So. 2d 406 (Ala. Civ. App. 1991) (affirming the trial court’s refusal to grant alimony to the wife when she was receiving the same level of support she had enjoyed during the marriage, but reversing for failure to reserve for future alimony and failure to require husband to provide medical insurance for the child of the parties); Rowe v. Rowe, 601 So. 2d 1048 (Ala. Civ. App. 1992).

[88] West v. West, supra at 584.

[89] Hendrix v. Hendrix., 606 So. 2d 142 (Ala. Civ. App. 1992).

[90] Ex parte Manakides, 564 So. 2d 983 (Ala. Civ. App. 1990).

[91] Boley v. Boley, 589 So. 2d 1297 (Ala. Civ. App. 1991).

[92] Hartsfield v. Hartsfield, 384 So. 2d 1097 (Ala. Civ. App. 1980), cert. denied, 384 So. 2d 1100 (Ala. 1980).

[93] See Section 6.2.

[94] Shirley v. Shirley, 600 So. 2d 284 (Ala. Civ. App. 1992); Cliett v. Cliett, 564 So. 2d 997 (Ala. Civ. App. 1990).

[95] Ala. Code 30-2-51(a) (1975); Lewis v. Lewis, 416 So. 2d 755 (Ala. Civ. App. 1982).

[96] McDonald v. McDonald, 574 So. 2d 842 (Ala. Civ. App. 1990).

[97] Ala. Code §30-2-55 (1975).  The parties can agree, however, to have alimony continue notwithstanding the spouse’s remarriage.

[98] Hicks v. Hicks, 405 So. 2d 31 (Ala. Civ. App. 1981) (reversing the trial court’s decision to terminate alimony).  “The evidence before the trial court in this case at most could be interpreted as proving only an occasional indiscretion.  Such evidence is not sufficient to terminate alimony under §30-2-55.”  Id. at 34.

[99] Knight v. Knight, 500 So. 2d 1113 (Ala. Civ. App. 1986)

[100] Castelberry v. Castelberry, 549 So. 2d 516 (Ala. Civ. App. 1989).

[101] Hicks v. Hicks, supra.

[102] McCluskey v. McCluskey, 528 So. 2d 328 (Ala. Civ. App. 1988) (affirming trial court’s decision to terminate alimony).  The spouse and her companion “admitted that they were open in their relationship for almost a year, that they spent from one-half to two-thirds of their nights with each other under her roof, and that, on those occasions, she provided their evening meals, with a reasonable inference being that she also furnished their breakfasts before he left for work.”  Id. at 331.

[103] See Section 6.1.3.

[104] Robinson v. Robinson, 381 So. 2d 637 (Ala. Civ. App. 1980), cert. denied, 381 So. 2d 641 (Ala. 1980).

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