Alabama

VISITATION RIGHTS OF GRANDPARENTS UNDER ALABAMA LAW

In 2003, in response to the United States Supreme Court’s decision in Troxel v. Granville, Alabama amended its statute pertaining to the visitation rights of grandparents. In Troxel v. Granville, the Supreme Court held that a statute in the State of Washington unconstitutionally infringed on the rights of parents. Among other things, the Washington statute allowed any person, regardless of whether they had a familial relationship with the subject child, to petition for visitation rights.

The amended Alabama law instructs the court to consider, among other factors, the wishes of any parent who is living in ascertaining the best interest of the subject minor child. However, if the judge disagrees with the parent’s estimation of the minor child’s best interest, the judge’s view prevails. Thus, the Alabama courts retain the power to order visitation by grandparents, even without the consent of a parent.

Like most states, Alabama does not require that a party establish fault in order to obtain a divorce. There are two separate sections of the Alabama Code that provide for no-fault divorce. In most instances, plaintiffs reference both sections in their complaints for divorce. The sections are as follows:

1 . Incompatibility of Temperament

Section 30-2-1(a)(7) provides that a divorce may be granted upon application of either the wife or husband when the court is satisfied from all of the testimony that there exists such a complete incompatibility of temperament that the parties can no longer live together.

2 . Irretrievable Breakdown

Section 30-2-1(a)(9) of the Alabama Code provides that a divorce may be granted upon application of either part, when the court finds that there has been an irretrievable breakdown of the marriage and that further attempts at reconciliation are impractical or futile and not in the best interests of the parties or family.

GROUNDS FOR DIVORCE IN ALABAMA

In Alabama, a complaint for divorce may be based on incompability and irreconcilable differences (also known as the "no fault" grounds for divorce) or fault of the other party. The fault grounds for divorce include abandonment, adultery, imprisonment for two years or longer, and habitual drunkenness or use of drugs. Incompatibility is the most commonly used basis for divorce. The grounds for divorce are set forth in Section 30-2-1 of the Alabama Statutes:

§ 30-2-1. Grounds; jurisdiction for proceedings; divorce judgment awarded to both parties. (a) The circuit court has power to divorce persons from the bonds of matrimony, upon a complaint filed by one of the parties, entitled “In re the marriage of ……………. and …………….,” for the causes following: (1) In favor of either party, when the other was, at the time of the marriage physically and incurably incapacitated from entering into the marriage state. (2) For adultery. (3) For voluntary abandonment from bed and board for one year next preceding the filing of the complaint. (4) Imprisonment in the penitentiary of this or any other state for two years, the sentence being for seven years or longer. (5) The commission of the crime against nature, whether with mankind or beast, either before or after marriage. (6) For becoming addicted after marriage to habitual drunkenness or to habitual use of opium, morphine, cocaine or other like drug. (7) Upon application of either the husband or wife, when the court is satisfied from all the testimony in the case that there exists such a complete incompatibility of temperament that the parties can no longer live together. (8) In favor of either party, when the other, after marriage, shall have been confined in a mental hospital for a period of five successive years, if such party from whom a divorce is sought is hopelessly and incurably insane at the time of the filing of the complaint; provided, however, that the superintendent of the mental hospital in which such person is confined shall make a certified statement, under oath, that it is his opinion and belief, after a complete and full study and examination of such person, that such person is hopelessly and incurably insane. (9) Upon application of either party, when the court finds there has been an irretrievable breakdown of the marriage and that further attempts at reconciliation are impractical or futile and not in the best interests of the parties or family. (10) In favor of the husband, when the wife was pregnant at the time of marriage, without his knowledge or agency. (11) In favor of either party to the marriage when the other has committed actual violence on his or her person, attended with danger to life or health, or when from his or her conduct there is reasonable apprehension of such violence. (12) In favor of the wife when the wife has lived, or shall have lived separate and apart from the bed and board of the husband for two years and without support from him for two years next preceding the filing of the complaint, and she has bona fide resided in this state during said period. (b) When a judgment of divorce is entered, in effect, it is awarded to both parties to the marriage.

PROCEDURE AFTER A COMPLAINT FOR DIVORCE IS FILED

After a divorce complaint is filed and served, the procedure is, initially, determined by whether the defendant-spouse files an answer to the complaint:

(a) Default: If the defendant does not answer the complaint, the case is treated as a "default", and the matter is resolved on the basis of the plaintiff's testimony and written submissions. The defendant is required to answer the divorce complaint within 20 days after he or she is served.

(b) Uncontested: If the parties have entered into an agreement resolving all of the issues relating to the dissolution of their marriage (distribution of property, alimony, child support/custody) the case is referred to as "uncontested." If they have already reached a resolution at the time the complaint is filed, it is common for the defendant to sign a waiver of service form. An uncontested divorce can be completed in as little as a few months.

(c) Contested: If the defendant answers the complaint, the case will proceed to trial unless the parties reach a settlement agreement. Because of the cost and stress frequently associated with divorce, many cases that begin as "contested" are resolved, and afterward, proceed as uncontested.