These blog postings concern family law matters such as divorce, custody, and child support. If you want to participate in the conversation then feel free to leave a message on any of the posts.

How Do You Prove Adultery in Court?

Alabama Code Section 13A-13-2(a) states, “A person commits adultery when he engages in sexual intercourse with another person who is not his spouse and lives in cohabitation with that other person when he or that other person is married.” Adultery is the cause for many couples to file for divorce throughout the country, and Alabama is no exception. In Alabama, there are two types of divorces which you can file, contested or uncontested. How do you prove adultery in Court?Uncontested divorces are also called “no fault” divorces, which means the spouses agree on the need to divorce, the division of their property, and, if applicable, child custody matters. Generally, uncontested divorces are less expensive and are processed through the courts quicker than contested divorces. Uncontested divorces can be granted on generic terms like incompatibility and irretrievable breakdown of the marriage.

If you want to file for divorce with adultery as the grounds, you’ll need to file a contested divorce in most cases. At trial, you will need to offer evidence to the court that adultery took place. Proving adultery can be difficult. In order to prove adultery there must be actual proof of at least one act of illicit sexual intercourse. In general, Alabama law requires that there be some proof of either an expressed or implied agreement between the two persons that they have committed adultery and that the relationship will continue to some degree. The most likely example of such evidence would be retrieving text messages between your spouse and the person with whom he/she is suspected of committing adultery.

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.

You should be aware that if you list adultery as grounds for divorce, some information, such as the grounds listed, can be a matter of public record and anyone can see it. Some couples prefer to list irretrievable breakdown of the marriage because that is easier to show evidence of and it does not put as much private detail into the public record.  After filing and engaging in discovery, the divorce will go to trial. 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.

Adultery is not a bar to receiving alimony in Alabama. However, the judge can take that matter into consideration in awarding alimony or in determining the amount. If marital assets were used to further an affair, that can be taken into consideration when it comes to awarding alimony. Adultery can also be considered in awarding custody. Therefore it is important to understand the impact that filing for divorce with adultery as the grounds before moving forward with your divorce filing. Our local divorce attorneys can discuss your situation with you and offer advice as to the best course of action based on your circumstances. Call our office today if you have any questions about proving adultery in Court.

How Much Does It Costs to Go Back and Modify My Divorce?

Sometimes circumstances change after the judge signs your divorce decree, which lays out the terms of your divorce. It can be difficult to alter the terms of your divorce unless you can show the court the modification or appeal is justified. Once the divorce decree is signed, you have the right to file an appeal the terms of the divorce or a motion to modify certain specific terms. An appeal must be filed within thirty days of the original judgment. Modifications can be requested at any time after the divorce is finalized.

If both parties agree to the appeal or modification, we charge $600 to $800 to file the necessary paperwork for you and there is a filing fee as well. How Much Does It Costs to Go Back and Modify My Divorce?As long as both parties agree then it doesn’t matter if there has been a substantial change or not, the judge will usually grant it since it is by agreement. If one party does not agree to a modification, we charge at least a $2,500 retainer to file it on your behalf. It can be difficult to alter the terms of your divorce since you will have to show the court a convincing reason why you want to modify your divorce. The most common type of modification involves child support and spousal support. They usually require some type of life change in order to modify (e.g., significant change in income, major medical event, etc.).

To alter the terms of your divorce decree, one party much file a Petition to Modify the decree. If you and your ex-spouse agreed on the term in question during the divorce process, then the petition would be to change certain aspects of the agreement. If you and your ex-spouse did not agree on the term in question and the term was decided by a judge, then you would petition to change the judge’s decision. In the latter instance, even if you and your ex-spouse agree on the proposed change, you’ll still have to convince the judge to modify the court’s order. If you and your ex-spouse do not agree on the proposed change, you’ll have to argue against your ex-spouse and argue your case to the judge why your proposed change is necessary. If it is a prior agreement to be amended without both parties agreeing to the change, then you will need to show a change in circumstances that justifies the proposed change. 

If you and your ex-spouse do not agree on the proposed modification, you will need to file your Petition to Modify without an agreement and it will be set for a hearing. At the hearing, your ex-spouse can object to the changes and the two of you can litigate the issue to have the judge determine the contested issues for you.  This can cost quite a bit in attorney fees, but either party can always file a Petition to Modify and have a hearing even without having reached an agreement with the ex-spouse. Can I go back and modify divorce?If you have reached an agreement in your divorce and file a Petition to Modify a few months after your divorce decree was entered, you may have difficulty since you agreed to the Settlement Agreement just a few months prior and now want to change it. There has likely not been enough time passed for there to be a substantial change in circumstances. 

When you agree to a Settlement Agreement in a divorce, it is a binding contract between you and your ex-spouse.  Like any contract, you agreed to it at the time, so a judge is not going to let you out of the contract very easily.  The more time that has passed since you agreed to the contract, the more likely a judge is to let you alter parts of it or get out of certain aspects of the agreement as situations are more likely to change significantly over a period of time.

Sometimes if former spouses still get along well, they may informally decide to change or modify certain terms of their divorce. For example, they may make informal adjustments to how they divide their property, how much one party pays the other for child support, and custody plans. It is not advisable for you to do this. If one spouse changes their mind, they can go back and hold you to the original terms and potentially get the court involved. Maybe you were getting along fine with your ex-spouse, and they decided you could keep the car, even though they got it in the divorce. Well, maybe you start dating again and they hear about it and get jealous. They can demand the car back, and you have to give it to them unless you want law enforcement at your door. Stick to the terms of your divorce and if you do find yourself in need of modification, contact us so we can get it done for you the right way.