Contested v. Uncontested Divorce in Alabama
When divorcing spouses are able to come to an agreement about custody, property and support issues, the courts give them the option of filing forms for an uncontested divorce. This type of divorce is efficient and low cost in terms of money spent on legal fees as well as emotional costs. If you are unable to locate your spouse or have some disputed issues over custody arrangements, parenting time and the division of assets, an uncontested divorce will not be permitted.
Resolving Conflicts Before You File
Just because you and your spouse are unable to arrive at a fair resolution right away, it doesn’t mean you will have to go through the entire ‘contested divorce’ process. You can turn to mediation or other forms of alternative dispute resolution to settle your disputes. Upon reaching a settlement, you can file the forms without the need for litigation.
When considering divorce, some of the most important decisions you will make will have to do with your attorney, beginning with which one you hire, handling differences in communication needs, getting timely information and how much you can realistically afford to spend.
It seems that everyone knows someone who is battle-scarred by divorce. In many cases, it wasn’t the ex-spouse who caused the emotional drama. Too often, the process got out of control because one or both parties turned things over to their attorneys. While it is true that some lawyers may take that to mean “money is no object,” most are very wary about working with a client who does not engage until the attorneys’ fees start to add up. Do yourself a favor: Get involved and remain involved throughout your case. Sitting down with your lawyer to discuss your expectations is critical — not only your expectations about legal services, but expectations about what you hope and expect your future to look like years after your divorce judgment has been handed down. It helps to understand the basics of divorce.
In Alabama, your county judge will expect both parties and their attorneys to do everything possible to resolve disputes outside of the courtroom. That does not mean that every divorce is uncontested. No matter how amicable you and your spouse may be toward reaching a fair settlement for custody, property and spousal maintenance, there are almost always issues that turn into disputes when the proposed settlement hits the courtroom. Sometimes, the judge simply won’t sign off on an agreement that doesn’t protect both parties’ rights. Other times, the exact wording of the agreement becomes a sticking point. The key, however, is to understand that even the most complex disputes are often resolved outside of the courtroom, with attorneys, mediation professionals and specialists helping parties see through the muddle to reach a clear understanding of what is fair and what will work.
If you and your spouse are still on speaking terms, begin the divorce process by setting out a list of expectations. You may not like what you see, but it’s a start. Take the list to your attorney and discuss the available options. An experienced divorce lawyer will know the local Alabama county judge and court procedures your case will be processed under. Your lawyer should be able to tell you whether one or more of the disputed issues can be resolved through a form of alternative dispute resolution such as mediation or simply skillful negotiations between the lawyers involved.
Most attorneys will tell their clients that a divorce can take as long and be as expensive as they want it to be. Attorneys’ fees are only part of the costs. If either party decides to pursue a judgment in court, there will be long delays for evidentiary hearings and depositions. Costs for financial experts and independent child welfare specialists will add up quickly. There are times when fighting with your wallet may make sense. Often, though, the judge will expect the attorneys involved to work things out before it comes to a bench trial.
A high number of divorces in Alabama today are processed through mediation. This means the parties agree to hire an independent legal professional who has extensive experience with Alabama and local county court family law. Parties should each have their own attorney representing them throughout the process. Under Alabama law, a single attorney may not represent both parties. In addition to the attorneys and mediator, parties may also have access to independent experts to help them understand complex issues about taxes, finances and child welfare.
Generally, an initial session will last two hours, during which time the ground rules will be discussed and some disputes may be settled. At the conclusion of the session, the attorneys will draft a revised settlement agreement and typically agree to come together for a second meeting. Several additional meetings may be required to resolve some of the tougher issues. Throughout the mediation process, either party may back out at any time.
The Final Mediated Settlement Proposal
Throughout the process, the mediator’s job is to ensure that the parties and their lawyers see things from the court’s perspective. The county judge may not necessarily approve a settlement proposal, even if signed by both parties. By having a mediator involved and guiding the pace of the negotiating sessions, the parties are able to remove much of the frustration that brought them to divorce in the first place. While some of the sessions may still be contentious, the general feel in the room is that everyone involved is working toward a fair resolution.
Upon reaching a settlement, the mediator drafts a final proposal and presents it to the county court for adjudication, which means that the judge reviews it. Either party is still free to pull out of the settlement agreement right up until the judge signs it and hands the settlement down as a court judgment.
Contested Divorce — Trial
It is important to remember that marriage in Alabama is a legal contract. It required a court of law to confer the social and legal benefits of marriage. It takes a court of law to allow the parties to break the contract as well. If the divorcing parties are unable to settle their disputes outside of court, either party has the right to sue for divorce in court. Parties will be required to settle as many of their disputed issues as possible through a negotiated agreement. Only the issue or issues that cannot be settled will be considered in a bench trial.
Most divorce trials in Alabama do not sit a jury. Instead, a preliminary hearing will be scheduled for several months in the future, giving the attorneys time to gather evidence, which typically includes depositions from relevant expert witnesses. Attorneys will present their evidence to the judge, who will review the facts and may schedule subsequent trial hearings for witnesses and evidence to be presented. The judge will instruct the attorneys for both parties to do everything possible to resolve the contentious issues during the months between hearings.
After one or more courtroom trial sessions, the judge will make a decision based on the evidence presented in court. It is not unusual for a judge to take several additional months to make a decision. The judge may rule exclusively in favor of either party, but may also hand down a judgment that may be partially in favor of both parties. As the old saying goes, ‘Nobody ever gets everything they want in court.”
Learn more by sending an email or call The Rose Law Firm in Birmingham to schedule a consultation with a lawyer.