Marriage is essentially a contract in the eyes of the law. When both parties agree on how to terminate a contract, the process is typically quicker and smoother. Likewise, when both spouses agree on all the terms of a divorce, that is called an uncontested or no fault divorce. Just like with all contracts, however, when at least one party has even one issue with the terms of breaking the contract, it slows down the process and you may have to end up in court. When spouses don’t agree on the terms of their divorce that is classified as a contested divorce.
To file for a divorce, you or your spouse must have resided in the state of Alabama for at least six months. If you are the spouse filing for divorce you are the Plaintiff and your spouse is the Defendant. You can file a Complaint for Divorce in the Circuit Court of 1) the county where the Defendant resides, 2) in the county where the Plaintiff resides if the Defendant is not a resident of Alabama, or 3) in the county where the spouses resided at the time of separation. For the Complaint for Divorce, you’ll need to have the following information available: Name, age, and residency of both parties; names of minor children and their dates of birth; grounds for divorce; marriage date and date of separation; acknowledgment that the parties have assets and debts for division; a plea for the court to take jurisdiction of the case and provide the requested relief.
If you are the Plaintiff, when you file the Complaint you will also ask the court to grant your terms regarding things like alimony, child custody, property division, and child support. Once you file, the Defendant has thirty days to respond and the complaint must be delivered to the Defendant by the sheriff’s department, certified mail, or a process server. The Defendant’s answer to your filing is very important, because if your spouse doesn’t agree with what you are asking for your spouse (or his/her attorney) can make their own set of demands and/or file a counterclaim against you. If the Defendant refuses to respond to your Complaint, you can ask the court for a default judgment in your favor.
The next phase is Discovery. This is where your attorneys gather evidence such as relevant documents, take depositions, file motions, and put together a substantive case for you. After the court has decided on the various motions you file, judges usually want you to discuss the terms of your divorce with your spouse outside of court. This can be done with or through your divorce attorney if needed. If you cannot come to an agreement with your spouse over the terms of the divorce, the divorce will go to trial and the judge will make a decision for you on the unresolved matters.
At trial, the parties may present evidence such as documents, expert testimony, and witness testimony to support their case. The judge then takes all of this into consideration and makes a ruling. Once the judge has signed a divorce decree the parties must follow the ruling. You can file a Motion to Alter, Amend, or Vacate the judge’s ruling within thirty days of the ruling, but both spouses would have to agree on what they are asking of the judge.
Contested divorces typically take much longer to come to a conclusion. Once the Defendant replies to the Complaint, the court sets a trial date which is usually several months out. Then, once the trial does occur, the judge will often take the case “under advisement” and take a few more months to reach a decision on who gets what. This can make the divorce process over a year in some cases. Since your attorneys will be gathering evidence, filing motions, setting up negotiation attempts, accompanying you to court among other things, the attorney’s fees for a contested divorce can cost several thousand dollars.