Alabama Divorce Laws: an Overview
In Alabama, the fundamental laws governing divorce stem from Title 30 of the Code of Alabama. In the State of Alabama, divorce is a legal action that terminates the bonds of matrimony between two spouses. Alabama currently recognizes two grounds or reasons for granting a divorce: (1) divorce "from the bonds of matrimony" or (2) divorce "from bed and board." Essentially, divorcing "from the bonds of matrimony" terminates the marriage, allowing both parties the ability to remarry. In order to be granted a divorce from the bonds of matrimony , a party must establish one of the seven statutory grounds for an absolute divorce under Alabama law. These grounds include: • Adultery; • Living apart for more than one year without reconciliation; • Abandonment; • Imprisonment of spouse for at least two years; • Impotency or inability to conceive without that party’s consent; • Expectation of death or serious injury during pregnancy; and • Mental incompetence of a spouse. Divorce from the bed and board is a limited form of divorce that does not conclude the marital status between the parties. A divorce from bed and board prohibits spouse from living together as husband and wife but allows the spouses to continue to reside in the same residence. Parties may seek this limited form of divorce for "formal intermediary relief," such as protecting assets, while they seek divorce from the bonds of matrimony. To qualify for a divorce from bed and board, spouses must establish one of the following statutory grounds: • Spousal abandonment; • Domestic violence; • Impotency or inability to conceive without the requesting spouse’s consent; • Spousal addiction or excessive drunkenness; and • Spousal incarceration for at least one year. For other possible grounds for divorce in Alabama, refer to Code of Alabama § 30-2-1.
Adultery as Grounds for Divorce in the State of Alabama
Adultery can be a specific ground for divorce in Alabama. Adultery is defined in Alabama law as "[t]he voluntary sexual intercouse of a married person with a person other than that person’s spouse during the pendancy of (i.e., while still married) a marriage." This means that it is not adultery for a person to have sexual relations with someone who is married, provided that person is also married.
It cannot be adultery in Alabama for two unmarried people to engage in extramarital sexual relations because both parties are not required to be married to be guilty of adultery, unlike in some states.
Adultery in Alabama is a "fault" ground for divorce. Generally this means that if the proper grounds for divorce exist, the Court will grant the divorce regardless whether one of the parties is "at fault." However, being at fault in the divorce can affect property ownership of the parties and support obligations required under the divorce judgment.
In order to prove adultery in Alabama, conduct with the person considered the "affair" partner must be shown to have occurred within the State of Alabama. By way of example, if person A and persons B and C were continuously having sexual relations in the state of Georgia, then person A obtains a divorce in Alabama because he or she is a resident of Alabama, the exercise of divorce jurisdiction will likely be improper because the conduct necessary to support the ground of adultery did not occur in Alabama.
The most common question asked when covering adultery as a ground for divorce is whether the person who committed adultery can continue the affair after the divorce is filed, and the answer is yes. The Judge cannot issue a divorce on the ground of adultery if the conduct in question has become so continuous and permanent that the Judge cannot undo it. This occurs in cases of bigamy, for example, when Person A has married Persons B and C. The Court will not issue a divorce decree because it cannot undo the marriages, and in the bigamy example it cannot undo binding legal relationships. Adultery committed after the divorce is filed no longer has the ability to "undo the marriage" so to speak.
In other words, after the divorce is filed it is no longer adultery under Alabama law, because the second legal relationship affected by the conduct (the marriage between Person A and Person C) is not created until the divorce judgment is issued. As soon as the divorce is issued the relationship affected includes the marriage between Person A and Persons B and C.
How Adultery Affects a Divorce Case in Alabama
Adultery can affect divorce proceedings in Alabama in several ways. Factors that may influence the impact of adultery on the divorce process include whether the adultery took place prior to or after the separation of the couple, whether it occurred early or late in the marriage and whether or not the adultery had a direct impact on the well-being of the minor children of the divorcing couple.
In Alabama, adultery can be grounds for divorce, although it is not the only grounds for divorce. Several other issues may also impact the divorce process, including desertion, conviction of a felony or spouse abuse.
As a rule, however, adultery has little to no bearing on the division of assets or on alimony orders. When there are no dependent children involved in the divorce, adultery is also not likely to affect child support payments.
The relationship between the fault-based grounds for the divorce and the possibility of receiving an award of alimony is tenuous at best, and awards of alimony because of adultery are rare. His or her behavior prior to the filing for divorce may have absolutely no bearing on the eventual court awards of alimony. One area in which an award of alimony may be reduced or denied is where the wife has committed adultery and her husband, knowing that she has done so, continues to support her.
On the other hand, a spouse who commits adultery can be penalized in other ways. He or she may be disinherited or may find himself or herself disqualified as beneficiary of a will, charitable trust or other estate planning vehicle.
Proving Adultery in an Alabama Court
While the emotional toll of adultery is significant and unquantifiable, proving this marital fault is a different story. In Alabama, a party must prove the allegations of adultery to be awarded a divorce on the ground of adultery. The Alabama Court of Civil Appeals case of Gottfried v. Gottfried discussed the evidentiary burden for proving adultery. In Gottfried, the Court stated that "The proof required to establish the adultery ground for divorce, within the rule of Moore v. Moore, 408 So. 2d 444 (Ala. Civ. App. 1981), is clear and convincing evidence of the commission of adultery by one spouse." So, while a party does not have to prove the adultery by a "beyond a reasonable doubt" evidentiary standard, like criminal defendants, the party seeking the divorce has to establish his or her case by clear and convincing evidence.
What exactly does this clear and convincing standard mean? While the Gottfried case did not discuss the meaning of the clear and convincing evidence standard , the Alabama Supreme Court’s opinion in Ex Parte McLendon discussed the meaning of this standard. In McLendon, the Court stated that this Means "the truth of the declarations may be made more probable than their opposite is." So, to prove adultery in an Alabama divorce case, the party seeking the divorce needs to show by clear and convincing evidence that adultery was committed. However, this evidence does not have to be direct evidence. This means that circumstantial evidence can be used to prove this adjudicatory fact. In general terms, circumstantial evidence means evidence that infers that something is true because other things are true. An example of this would be the fact that something is out of place or where it is supposed to be, making it more probable than not that something may have happened. While parties do not have to prove their case beyond a reasonable doubt, they should seek to put together the strongest evidence they can.
Legal Consequences and Penalties for Adultery
Legal Implications and Outcomes of Adultery in Alabama
If adultery is proven, a divorce may be granted to the innocent spouse, but it is not required that a court grant a divorce. Moore v. Moore, 275 So. 2d 807 (Ala. 1973). The court is permitted to take into account the conduct of either party to the extent that conduct may have affected their state of mind towards the other spouse or the marriage. McGowan v. McGowan, 8 So. 3d 979 (Ala. Civ. App. 2008). Like abandonment, adultery is considered statutory bar to inheritance both inter vivos and post-mortem. Hence, if you commit adultery and your spouse dies, Alabama law potentially disinherits you from your spouse’s estate assets.
Further, if a child’s paternity is established after the death of the father, then the child may be a "legitimate child" of the father provided that the father and mother were married when he was born or during the 300 days immediately preceding his birth and that the father holds himself out to be the father of the child and provides support for the child. Professing love for the mother and having sexual relations with her does not constitute support. Barlow v. State, 469 So. 2d 1371 (Ala. Crim. App. 1985). The burden of proof is on the party seeking to establish paternity by clear, convincing, and satisfactory evidence. Gunter v. Tatum, 170 So. 3d 596 (Ala. Civ. App. 2014). There is no statute of limitations for establishing paternity in Alabama, because being deemed a parent could subject a named parent to an array of rights and responsibilities. Ex parte Leonard, 971 So. 2d 68 (Ala. 2007).
Choosing an Attorney for Adultery Cases in Alabama
When it comes to more complex grounds for divorce in Alabama, adultery can have a significant impact. Despite the stigma, however, a spouse alleging adultery — even if it’s proven — cannot use this as a tool against the other spouse in a court of law. It’s important to have a knowledgeable attorney who can help you navigate these sometimes treacherous waters and advise you on how adultery will specifically affect your case.
The issue of adultery can be a complex one to talk through with an attorney, as it’s clear from the text above that there are very specific and technical terms that apply to prosecuting an adultery claim. This is where it’s important to talk through your issues with a divorce attorney who has substantial experience and a thorough understanding of "willful and voluntary abandonment."
It might seem that hiring an attorney to handle a divorce cases where adultery is the explicitly stated reason is unnecessary, since the other spouse is clearly at fault in the matter. However, this is simply not true, as there are so many considerations that an experienced divorce attorney will take into account when constructing a case that could be left by the wayside without proper counsel.
Any case of adultery is going to involve some level of emotions. Thus, an emotionally-driven individual might be inclined to do things that will only complicate the case further, but having a divorce attorney who understands adultery and its consequences will ensure that you stay level-headed and that attorney does all the talking to the judge .
Even if the judge finds adultery to be the cause of the divorce, they typically do not award alimony for life. So unless you committed adultery and your spouse earned substantially more income than you, adultery is not going to absolve them of payment. Instead, your divorce attorney could recommend focusing an alimony request on your marriage duration, your ability to support yourself, and any significant disparity in earning levels between you and your spouse.
Hiring an attorney for adultery cases in Alabama is important first and foremost for the many complex issues that might be brought up that can’t just be discussed in a casual setting. You need to be able to count on your lawyer to handle the collection and prosecution of all necessary evidence, all the while advising and counseling you as to what steps to take as you prepare for trial.
The consultation phase of hiring an attorney is the most important part of the process. Sitting down and discussing your case with a lawyer with knowledge of adultery proceedings will help you better understand the process, ensure that you have gathered all of the paperwork and information you need, and give you the most accurate picture possible of what will happen if the case goes to trial.
The consultation also helps you determine whether you and the lawyer would be a good fit to work together, so you don’t end up doomed to a frustrating relationship.