The Ins and Outs of Divorce: Attorneys cover the basics and share key information and misconceptions. by Sara Hacker I graduated from law school and became a member of the Alabama State Bar in 2005. During the year following my graduation, I clerked at the Alabama Supreme Court. Like most law school graduates, I had taken a course in family law. I also studied Alabama family law for the bar exam. However, after observing a divorce attorney engage in negotiations with the opposing counsel, I realized how little I knew about the practical aspects of divorce law in Alabama. If I knew so little, then the general public must assuredly be in the dark. Individuals dealing with the emotional turmoil related to divorce need to understand the basic legal issues they will face. To help people obtain this information, I interviewed two Birmingham divorce attorneys, David Dorn and Candi Peeples, about what people facing divorce need to know. Dorn states that the biggest misconception his clients have about divorce is “that it is going to be easier than it actually is, from a legal standpoint.” He also says that frequently his clients “have unrealistic expectations of what the lawyer can do and of the actual process.” After conducting my interviews and doing my own research, I realized there were many common misconceptions related to Alabama divorce law. My hope is that the following information will help those involved in divorce proceedings, those contemplating a divorce or those supporting loved ones or friends through this difficult process. True or False: Any licensed attorney can handle my divorce. TRUE Any attorney licensed to practice in the state of Alabama can represent a party in a divorce. However, you may want to think twice before hiring your neighbor or a bankruptcy attorney to handle your divorce. Dorn recommends that people seeking a divorce “hire a lawyer whose practice concentration is in divorce.” Attorneys that specialize in divorce are usually knowledgeable about divorce law and they stay informed about changes in the law related to divorce. Further, you may not want to hire a close friend to handle your divorce because the attorney may be too emotionally involved. Dorn explains that emotion frequently can cloud judgment in a divorce case and that “a good lawyer stays above the emotional aspects of the case.” True or False: Even though my spouse has not committed any sort of marital misconduct, I can still get a divorce. TRUE Historically, the only way to get a divorce in Alabama was through a showing of fault. Now all states allow married couples to get a no-fault divorce by showing that the marriage is irretrievably broken. Dorn estimates that “true incompatibility, where there are no affairs, is probably about 50 percent of my cases” and that there is some type of “marital misconduct” in the other 50 percent. No-fault grounds for divorce, as defined by Alabama statute • Complete incompatibility of temperament • Irretrievable breakdown of the marriage Fault Grounds for divorce, as defined by Alabama statute • Physical and incurable incapacitation at the time of the marriage • Adultery • Voluntary abandonment for one year • Imprisonment for two years • Crime against nature • Drug or alcohol addiction • Confinement to a mental hospital for five years with no hope of recovery • If the wife was pregnant at the time of the marriage, unbeknownst to the husband • Physical abuse • Living separate and apart for two years without support True or False: Once I get my divorce case in front of a sympathetic jury, I will get the property settlement that I want. FALSE Divorce cases are never tried in front of a jury. This misconception may come from Hollywood. In the movie Intolerable Cruelty, starring George Clooney as the unscrupulous divorce attorney, he tries a divorce case in front of a jury that eagerly listens to the scandalous testimony. “A female client may tell me that she wants a jury of all women,” says Dorn, and he must explain to the client that because “the judge is the fact-finder,” the case will never be tried in front of a jury. In fact, it is likely that your divorce case will never go to trial because the husband and wife are able to reach a settlement agreement. Both Dorn and Peeples estimate that at least 90 percent of their divorce cases settle and never go to trial. True or False: Most divorces take about one year. FALSE There is no way to predict how long a divorce will take. Dorn explains that generally the longer the parties have been married, the longer the divorce process will take and that a divorce can take anywhere from six weeks to two years. “Be prepared for it taking a little longer. That would ease frustrations. It is not a quick process,” says Peeples. She explains that “most people don’t realize that even with an uncontested-type divorce where everything is pretty much agreed on, it is at least a 30 day process.” Even when the parties agree to settle, the negotiations can take up to a year to complete. Peeples explains that the settlement process “may take a long time, but most cases do settle once people get realistic.” Dorn believes that often, the settlement process takes longer than it should. For example, Dorn says that a man may refuse to consent to a settlement agreement because of the desire to maintain some type of power over his spouse. “With men, a lot of times it is about power. The man may not consent to a settlement agreement to hold onto power,” he explains. True or False: All of our property will be split 50-50. FALSE Assets and debts acquired during the marriage will be divided “equitably.” Dorn explains that “some people think that equitable division means 50-50, and frequently, that is not the case.” Further, Dorn states that “the court has great discretion in making determinations in the division of property.” The court considers a number of factors in determining how to divide the marital property. Dorn believes that the most important factors that the court will consider when dividing up the marital assets are the “length of the marriage and how the assets were acquired.” The court will look to a number of “equitable factors” to determine how the marital property and debt should be divided. These factors are usually considered by courts in dividing the marital property: • The length of the marriage • Any prior marriage of either party • The age, health, station, income, education, vocational skills, profession and employability of either party • The contribution by one party to the education or increased earning power of the other party • The opportunity of the parties to acquire future income and assets • The services of each party as a parent, wage earner or homemaker • The contribution the parties made in augmenting the family’s wealth • The standard of living the parties established during the marriage • Tax consequences of distribution • With whom the children will reside a majority of the time • Whether either party has dissipated marital property True or False: My spouse has filed for divorce and we have a joint checking account. A race to the bank will determine who gets that money. Therefore, I should get to the bank and drain the account before my spouse can get to that money. FALSE While it may be tempting to drain the joint-checking account, the court will pay close attention to whether either spouse has dissipated marital property. If you drain the joint-checking account while a divorce is pending to buy a new wardrobe or to take a trip to the beach, the court will likely find that you have diminished the value of marital assets by wrongful conduct. Therefore, a spouse that drains the joint-checking account may end up getting less in the final property settlement. True or False: My spouse and I had some financial hardships so we frequently used a credit card to purchase groceries and other necessities. Because the credit card is in my spouse’s name, I will not be liable for that debt. FALSE Marital debt includes any debt incurred for the benefit of both parties. Therefore, the rules of fairness used by the court for the division of marital property also apply to the division of marital debt. It does not matter which spouse is legally liable for the “marital debt.” Just because your spouse has a credit card in his name does not mean that you may not be liable for the debt on that card after the divorce. If a credit card was used for the benefit of both spouses, the court will divide up the debt owed on that card equitably regardless of which spouse is legally liable on that debt. True or False: My child support payments will be the same as my neighbors because we have the same number of children. FALSE Just because both you and your neighbor have two little-ones running around the house does not mean you will get the same amount in child support. Peeples explains that a judge does not have much discretion in setting the amount of child support because the judge must follow the child support guidelines set out by state statute. The child support guidelines are essentially a “formula” used to calculate child support amounts. Anyone can fairly easily determine how much child support payments will be by filling in factors on the formula. Although the formula takes into account the number of children, other factors used to determine the amount paid in child support include: the combined income of the mother and the father, each parent’s income as a percentage of the combined income, pre-existing obligations to pay child support or alimony from a prior marriage, the amount paid for child care and the amount paid for health insurance. According to Peeples, it is rare for a judge to deviate from the child support guidelines and “most often, deviations occur by agreement of the parties. Judges tend to stick with the guidelines.” True or False: The judge will presume that my wife should have custody of the children. FALSE The standard the court uses for choosing between parents for child custody is based upon the best interest of the child. The court will consider a number of factors in making the custody determination. However, the gender of the parent is not one of the factors that the court will consider. If the court, after considering all the relevant factors, is left to decide custody between two qualified parents, the child custody award will often go to the parent who has been the primary caregiver. The primary caregiver is the parent who has been most involved in the child’s daily activities. The Best Interest of the Child The court will consider several factors in making the child custody determination: • Sex and age of each child • The emotional, social, moral, material and educational needs of the child • The home environments offered by each party • The characteristics of each part seeking custody, including age, character, stability, mental and physical health • The capacity and interest of each parent to provide for the emotional, social, moral, material and educational needs of the children • The interaction and interrelationship of the child with parents and siblings • A child’s adjustment to home, school and community • The preference of each child, if the child is of sufficient age and maturity • The report and recommendation of any expert witnesses or other independent investigator True or False: I will not have to pay my spouse any alimony because my spouse committed adultery. FALSE Marital misconduct is only one factor that a court will consider in determining whether alimony should be awarded. The main factors influencing whether a spouse will get alimony payments is the requesting spouse’s needs and the paying spouse’s ability to pay. Alimony is usually reserved for situations where one spouse has been economically dependent on the other for most of a lengthy marriage. In deciding whether or not to award alimony, the court will generally consider such factors as: • The earnings and earning capacities of the parties • The ages and health of the parties • Sources of income • The length of the marriage • The contribution by one party to the education or increased earning power of the other party • The extent to which a party’s earning power, expense or financial obligations will be affected by serving as the custodian of a minor child • The standard of living the parties established during the marriage • The relative education of the parties and the time necessary to acquire sufficient education or training to enable the party seeking alimony to find appropriate employment • The relative assets and liabilities of the parties • The property brought into the marriage by either party • The contribution of a spouse as a homemaker • The relative needs of the parties • The marital misconduct of either party during the marriage • Tax consequences to either party • Whether the party seeking alimony is incapable of self-support