Divorce is a difficult process. For an uncontested divorce, meaning that both spouses agree on everything and do not need the court to divide assets or make determinations about spousal or child support or custody, the process is less time consuming and less costly. For a contested divorce, the parties do not agree and need a third party, often times a court, to intervene, making the divorce process more time consuming and costlier.
What happens when the divorce is contested but one party does not respond? In terms of a lawsuit, a plaintiff is the person filing for the divorce and the defendant is the person not filing for the divorce. Alabama law contemplates a scenario wherein the plaintiff files a complaint seeking divorce and the defendant does not respond. This is called a default divorce.
If a case goes before a judge, the judge will determine whether a divorce should be granted, amount of support, property division, and child custody. Usually, the judge makes a decision based on the testimony and evidence of the two parties. However, if there is a default, the judge will base the ruling on the oral or written testimony of only the party who filed the suit.
Procedurally, the plaintiff files a complaint and serves the other spouse with that complaint. If the defendant/spouse does not respond within thirty days then the plaintiff can file a request for a divorce judgement by default, which usually favors the plaintiff. During this time the plaintiff, to attain a default divorce, must put an ad into local papers seeking the defendant. These divorces are also known as publications divorces.
If the plaintiff is not asking for assets and has no children from the marriage, then the divorce may be granted without a hearing. If there are children or the plaintiff is asking for assets, then the court will hold a default hearing. At the hearing, the judge will hear from the plaintiff and make a final decision, including custody, property, alimony determinations.
After a final judgment is made, the defendant has thirty to file a motion overturning a default judgment.
Residency Requirements in Alabama
If the defendant lives in Alabama, then the plaintiff files a summons and complaint with the circuit court in the county where the defendant lives. Alternately, the plaintiff can file them in the circuit court in the county where both spouses lived when they separated. If the defendant is not an Alabama resident, the plaintiff can file the complaint in the circuit court of the county where the plaintiff lives. When this happens, the plaintiff must be a “bona fide resident” of Alabama, which is that the plaintiff lived and maintained a residence in Alabama for six months before the filing of the complaint.
If you are seeking a divorce in Alabama, then you should contact the law firm of Parkman White. Parkman White are skilled divorce lawyers who are knowledgeable in the nuances of Alabama family law.