What to Do if You Need to Modify a Child Custody Order

by Jill Chancey | Feb 17, 2025 | Alabama, Child Support, Children, Custody, Divorce, Family Law

What to Do if You Need to Modify a Child Custody Order

Are your current custody arrangements not working for you or your children? Are there constant battles and friction over days, dates, exchanges, and holidays? You may want to see us about modifying your custody order.

There are several ways to modify your current custody orders:

If you and your co-parent are in complete agreement as to the changes, you can have an attorney draft the agreement, both parties will sign, and the attorney can file it with the court.
If you and your co-parent or more or less in agreement, but not 100%, you can each hire an attorney to negotiate the details, and then one of them will file it with the court.
The third way is to take your co-parent to court by a motion to modify your orders and ask the judge to decide what your new court order will be.

In all three circumstances, the judge will only sign off on an agreement if it complies with the law, which is why it’s best to have an attorney’s assistance.

Although there is room for variation in visitation schedules based on whether both parties agree, the only way to have a permanent order changing custody, visitation, or child support is to file it with the court.

What do I need to do?

Study your current order carefully. Are you complying with it? Is your co-parent complying? Is the court order working for your family’s needs as they are today? Sometimes a ten-year-old custody order is no longer feasible for your family. Many custody orders allow parents to vary the schedule if they are both in agreement with every change. This is great for minor day-to-day variants, but a major, regular schedule change is best put in writing and confirmed by the court. If your ex is not in compliance, this may be the time to file a motion for contempt, rather than a modification. Your attorney can help you determine the best course of action.
If you only have a verbal custody agreement, and it works for you, that’s fine. You aren’t required to have a court order. However, sometimes verbal agreements work for a while, and then will break down if one parent decides they want to make a change and the other doesn’t like it. We can help you formally codify a custody plan. We find a lot of people with verbal agreements will benefit from going to court and having paternity legally confirmed, a visitation schedule in place, and an equitable child support order.
Think about what specifically needs to change for your co-parenting to work. Why do you want to change? Is there a specific event or reason for wanting to change? Is there a problem with the visitation schedule? Do you need to amend the holiday or summer visits? What are you expecting the end result to be? It’s good to be clear about what end result you want as you begin looking for an attorney.
Do you think your co-parent will be okay with the changes you want? Discuss this with them and see if they’ll be on board. This primarily works in a low-conflict co-parenting relationship. It may not be worth it if they are high-conflict, vindictive, or otherwise difficult to deal with. However, a few calm and thoughtful problem-solving conversations may yield an arrangement you can both live with.
As you begin the process, discuss it with your child in an age-appropriate manner. You don’t need their permission, but you also don’t want to spring a sudden life change on a child. Let them know that things may be changing in the near future. Give them space to have an opinion about that. Revisit the issue from time to time through the process and help them prepare. They may be scared of change – lots of people of all ages don’t like change – so help them with any anxiety they may have. Do not question them or give them the impression that they get to choose where they live because that is not the law in Alabama.
Remember that the judge will consider what is best for your child or children, not necessarily what will make both adults happier. You may want to move across the country to take an amazing job or be closer to your family, but the judge will consider the impact this will have on the child’s relationship with both parents. There are relocation instructions in custody orders. Be sure to read those closely and comply with the requirements of the law.
If you want to change because your co-parent isn’t meeting his or her obligations, or making the exchange process difficult, you’ll need to document that. Keep a log or calendar of visits. Screenshot any texts that could serve as evidence. For example, your court order may state that a parent must give 48 hours’ notice that they will exercise weekend visitation, and they’re being disagreeable about that. Or there’s no such order, but their last-minute changes and requests are adding stress and complications to your child’s life. In that case, you may want a court order requiring advance notice.

What are some reasons to modify custody?

You’ve had a significant job or life change that gives you more time to spend with your child than you once had.
You want to move farther away than your custody order allows for. Judges do allow it sometimes, but you’ll need to make a good case for the move. An attorney can advise you on the possibility of success. You may find that you need to decide to stay put while your children are still minors.
Your child has become deeply involved in an extracurricular activity that doesn’t work with the current schedule. We find that summer sports and various camps, such as theater camp or summer camp, can conflict with the summer visitation that was put in place when they were very young.
Your child may be old enough to want to take on a job, and the other parent isn’t willing to work around that.
Your co-parenting relationship has become volatile or high-conflict and the exchange process has become difficult and stressful. Sometimes judges will order monitored exchanges in these circumstances.

For the following circumstances, you’ll need to have solid evidence to support your allegations. Again, an attorney can advise you on what actions to take if you are dealing with these issues.

Your co-parent has developed a drug or alcohol addiction and your children are unsafe with them. A solution might be supervised visitation, no more overnight visits, or Soberlink (regular alcohol tests during visitation). The judge may order that visitation be supervised by a trusted family member or an organization like The Family Center here in Mobile.
Your co-parent has a new partner that you believe is unsafe for your children. Some custody orders state that the co-parent cannot have their unmarried partner spend the night in the same house as the children. Even if not, your children are entitled to be safe in both of their homes. Foster a parent-child relationship in which your child feels safe to talk to you about this kind of thing, but do not interrogate them about your ex’s new partner.

Finally…

Make sure that the well-being of your children is at the forefront of your decision-making. If your problem-solving hasn’t yielded good results and you’re ready to make a change, it’s time to move forward. If you want to discuss any of these issues with an attorney, we are ready to advise you. You can call the office at 251-432-7909 or click here to request a consultation.

Author: Jill Chancey

Jill Chancey is a New Orleans native who has called Mobile home since 2019. She attended Trinity University in San Antonio, majoring in Art History and English. She also has an MA and a PhD in Art History. After earning a certificate in Paralegal Studies, she pivoted to the legal profession after several decades as an art historian. In her free time she enjoys science fiction, art museums, and collecting and reselling vintage design.

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12 Common Myths About Family Law and Divorce Debunked 

by Jill Chancey | Jan 27, 2025 | Alabama, Child Support, Children, Custody, Divorce, Family Law, Mobile

12 Common Myths About Family Law and Divorce Debunked 

We find ourselves debunking myths about divorce and family law all the time, whether on intake phone calls, in consultations, or during the course of a case. We’re not sure where these misconceptions come from, but most probably from TV, movies, and social media. Some of these may have even been true long ago, but aren’t anymore. Let’s get to it!

MYTH: If you move out, that is “abandonment” and you automatically lose your share of your house. This is probably the most common myth we hear.

FACT: This is not true. If you are unsafe, or even just miserable, you can absolutely move out. Your share of the marital home will be yours regardless of whether you have moved out during the case or not. More important are things like who bought the house, when they bought it, and who paid for it. Leaving without your children may damage your custody case; talk to your attorney about your options here.

MYTH: Child support is tied to visitation; if you don’t visit, you don’t have to pay; and if your ex doesn’t pay, you can deny visitation.

FACT: We know it’s tempting to deny your co-parent visitation if they’re not paying child support, but they are not contingent on each other. If your co-parent isn’t paying, he or she is in contempt of the court order. If you don’t allow visitation, you’re in contempt of the court order. You want to stay in compliance with that court order. If your ex isn’t paying child support or isn’t allowing your visitation, come see us about that, and we can help.

FACT: If you decide not to visit with your children, you still have to pay child support. You can choose whether or not to see your children – and we sincerely hope that you would want to – but you can’t stop paying child support based on that choice. Again, it’s the court order you have to obey.

MYTH: If your spouse cheats, you automatically get all of the assets and everything you want in the divorce.

FACT: People who have been hurt and betrayed in this way frequently want payback. We get that. However, the courts will not give you everything based on your ex’s bad behavior. The goal in every divorce is an equitable division of the assets – not necessarily equal, and not to the level of punitive damages either. The Court can consider fault, such as adultery, in dividing assets, but it is still just one factor that the Court considers, among numerous other factors.

MYTH: If one of your children reaches adulthood, you can just reduce your child support payment by half (or a percentage based on how many children you have).

FACT: You can only reduce your child support by getting a court order modifying your child support. We help people with this all the time. In Alabama, child support is required until the child’s 19^th birthday, and after that you can file for a modification. This can be pretty easy and straightforward if all parties are reasonable. If your child reaches 19 and is permanently disabled, you may not be able to modify your support. Come see us to discuss your options.

MYTH: If you are a social drinker or occasional cannabis consumer, you will automatically lose custody.

FACT: Boy, we hear this from our clients all the time: “but my ex drinks! At parties!”. It’s really okay for a parent to responsibly consume alcohol. The judges here are also unlikely to deny a parent custody solely because of occasional cannabis consumption (even though it is illegal here in Alabama). And let’s be real: if your spouse was drinking or using cannabis during the marriage, chances are good you might have been right there with them or OK with it at the time. If you didn’t have a problem with it before, it’s kind of hard to make a case that a social drinker shouldn’t have any rights to their children. If your spouse has an active addiction to drugs or alcohol, that’s an issue to bring up with your attorney.

MYTH: Adulterers never get custody.

FACT: This is definitely not true. Being a bad spouse doesn’t necessarily mean someone is a bad parent. You’re going to have to figure out how to co-parent with your ex even if they have cheated. It will be hard, but your children need you to figure it out. If the children have been exposed to or involved in the affair, especially if the affair partner is a dangerous person, that can definitely adversely impact your custody case.

MYTH: Whoever gets custody gets to keep the house.

FACT: The house is a marital asset and is a completely separate issue from custody arrangements. Sometimes parents will work together to figure out a way for the kids to stay in their home if they feel it’s important. This would typically involve the parent keeping the house having to refinance the mortgage and buy the other parent out of their share of the net equity, or offsetting that with another asset. A fairly recent trend is called “nesting” – the children stay in the home and the parents take turns staying at the house when it’s their custody time. In any event, the judge will not just automatically give the house to the parent with primary custody. If the decision about the house is left up to the judge, most of the time they will order the house be sold.

MYTH: I can make my lousy, no-good, rotten ex-spouse give me more money than we actually have because they’re such a jerk.

FACT: Sorry, no. The value of your combined assets is a fixed number, and the judge will not award you more than that fixed number. Again, we’re seeking an equitable division. We almost never see someone get everything, unless, for example, the ex-spouse never responds, never comes to court, is totally out of communication, and you end up with a default judgment. This is very rare. Even then, the idea of punitive damages does not apply in divorce cases. You can’t keep everything and then demand even more payment. If a judge decides your spouse is the one at fault in the breakdown of the marriage, they can decide it is equitable to give you more than half of the assets, but they are not going to award one person everything and the other person nothing.

MYTH: If my child reaches a certain age, he or she can decide whether or not to visit the other parent, or even which parent they live with.

FACT: We get it — teenagers want to do what they want to do. Sometimes they adamantly don’t want to see their other parent, or they want to spend the weekend with friends or do extracurriculars. Nonetheless, the court order stays in place until they’re 19. You can’t just call your ex and say “Daughter doesn’t want to see you this weekend.” The other parent deserves their parenting time. There is not a magic age (we often hear 12 or 14) where children get to dictate where they live or if they visit.

MYTH: The court regularly monitors parents’ adherence to custody and CS orders.

FACT: There is no surveillance or monitoring system in place to make sure that you or your ex comply with court orders. If you find that your ex is not complying, document everything, and then talk to us about whether it’s worth taking them back to court. The only exception here is child support; if you pay through the state’s website or with an income withholding order, there will be a record of what has been paid, but it is still up to you to take affirmative steps to enforce your order if the other party is not complying.

MYTH: You can force your spouse to pay all of your lawyers’ fees upfront.

FACT: We get this one a lot. We will definitely ask that your spouse have to contribute to your attorney’s fees; however, an attorney’s fee award is decided by the judge at the end of the case and it would typically involve your spouse having to reimburse you what you have already paid or some portion of it. An attorney’s fee award is never guaranteed and typically will not cover all of your fees.

MYTH: If your spouse sees a therapist or psychiatrist, they will be denied custody.

FACT: Seeking healthcare for mental health issues is commendable, not a reason to punish someone. In fact, it’s totally normal for a person headed toward divorce to seek counseling if they’re having a hard time coping. It’s also totally normal for neurodivergent people, such as those with ADHD, to see a psychiatrist and take medication for it. This doesn’t make them an incompetent parent. The judge will not deny custody to someone just because they are receiving appropriate mental health treatment. Someone with a dangerous or out-of-control mental illness may be subject to supervised visitation, but simply seeing a doctor or counselor is not an automatic disqualifier.

There are probably a lot of other misconceptions that we can sort out for you, but these are the ones we hear the most. As always, legal questions often have an “it depends” answer and only a consultation regarding your particular situation can result in more concrete answers.

Give us a call or Request a Consultation on our main page when you’re ready to get started.

Author: Jill Chancey

Jill Chancey is a New Orleans native who has called Mobile home since 2019. She attended Trinity University in San Antonio, majoring in Art History and English. She also has an MA and a PhD in Art History. After earning a certificate in Paralegal Studies, she pivoted to the legal profession after several decades as an art historian. In her free time she enjoys science fiction, art museums, and collecting and reselling vintage design.

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How to successfully co-parent after divorce

by Jill Chancey | Nov 6, 2024 | Child Support, Children, Custody, Divorce, Family, Family Law

How to successfully co-parent after divorce

Most people tend to think that the finish line has been reached once a custody and child support agreement is signed, filed, and finalized. The reality for our clients, however, is that their judgment of divorce or custody order actually the beginning of a new phase in their co-parenting relationship. Sometimes the parents have been separated for a while and already have a good routine in place, but not always. For some people, the new phase is actually easier now that they’ve put their own relationship in the rearview mirror. There’s less day-to-day contact, which usually results in less day-to-day conflict.

This isn’t always the case, unfortunately. High-conflict divorces and custody cases sometimes do not de-escalate once the court order is in place. What we see is that the most common points of conflict are when the children are exchanged, and when it comes time to reimburse the other parent for shared expenses. There are also people who simply thrive on conflict and will continue to make peace almost impossible for their families.

However, there are a number of resources available to assist co-parents in moving forward amicably. When exchanges are a flashpoint and the parents simply cannot be in the same space without getting into an argument, the judge will often order that all exchanges take place at The Gulf Coast Family Center of Mobile, which is a non-profit organization that assists families by providing supervised visitation and monitored exchanges. The Family Center has locations in both Mobile and Robertsdale. Some families also agree for parents to pick-up and drop-off the children at school, which can prevent conflicts between the parents.

If neither location is convenient, another option is for exchanges to take place in a public location, such as a police station about halfway between the parents’ homes. High-conflict people tend to tone down their behavior when in the presence of a building full of police, or if they find themselves in a place with cameras and witnesses all around them. This can also be a court-ordered solution to difficult exchanges. Sometimes the court will even order that neither parent can leave their car during the exchange. In addition, parents do not have to personally present for the exchange. A parent can designate another fit adult, such as grandparents, to handle the visitation exchange on their behalf.

As in many relationships, money can also be a point of conflict. Financial disagreements and incompatibility are a leading cause of divorce and relationship breakups. If two partners are fundamentally incompatible regarding spending, debt, and priorities, that will probably continue to be an issue after the divorce. Regardless, the court orders are usually very specific about how expenses should be divided. For example, all out-of-pocket medical expenses are frequently ordered to be split evenly between the parents. We do see a lot of parents arguing about what needs to be reimbursed, how quickly it was reimbursed, and whether the person who paid requested the reimbursement in a timely fashion.

These failures to communicate successfully can be assisted with one of several communication apps. One we see used frequently is the Our Family Wizard app. This is a subscription service in which both parents do 100% of their communications through the app, including sending receipts and so forth. That way one parent can block their ex from sending email, texts, making phone calls, or contacting them on social media. Our Family Wizard tracks and saves all communications so that each party has evidence of what has been said and what bills have been sent to each other. The app also includes a tone meter that gives you advice on how to make your own communication more neutral and less argumentative. Again, being monitored tends to cause high-conflict people to tone down their behavior. There are several other apps of this type, but Our Family Wizard is probably the most common and most comprehensive. Sometimes the use of an app of this nature is court-ordered. Judges can usually get a pretty good idea of whether a high-conflict relationship will continue to be so, whereas sometimes it’s part of a negotiated agreement.

When it comes to monthly child support, we always recommend that parties pay their child support through an Income Withholding Order so that payments are made automatically and the parents do not have to negotiate with each other on the when, where and how of the monthly payments. The money is deducted automatically from the payer’s paycheck, and sent to the payee by the child support payment center. Every payment is on record and easily confirmed. Paying with cash or a peer-to-peer payment app is not going to result in the best evidence that a child support payment has been made or received. Automating the process will, ideally, result in less arguing about when a payment is going to be made, or how much it will be, or why someone doesn’t want to make a payment this month. Less conflict is better for your kids, and better for you.

What happens if none of the systems in place prevent co-parents from coming into conflict, whether it’s over visitation, medical bills, child support, or the cost of extracurriculars? Well, that may be where we come in. A parent who is not in compliance with a court order may be found to be in contempt if they are taken back to court. It might also be that a modification of some aspects of the court order is warranted, if there is a sufficient change in circumstances. If you find that your co-parent is not abiding by the order in place, document everything as best you can. Keep copies of any communications, keep a log of visitation times, and track your expenses and payments.

If the issue is ongoing, you can always book a consultation with us to determine if it is worth taking it back to the judge for remediation.

Author: Jill Chancey

Jill Chancey is a New Orleans native who has called Mobile home since 2019. She attended Trinity University in San Antonio, majoring in Art History and English. She also has an MA and a PhD in Art History. After earning a certificate in Paralegal Studies, she pivoted to the legal profession after several decades as an art historian. In her free time she enjoys science fiction, art museums, and collecting and reselling vintage design.

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Child Support: Your Questions Answered

by Jill Chancey | Oct 18, 2024 | Alabama, Child Support, Children, Custody, Divorce, Family, Family Law

Child Support: Your Questions Answered

We get a lot of questions about child support here. It tends to be one of the most contentious elements in a divorce. We also help unmarried parents when they come to us looking for a fair arrangement for both child support and custody. Unfortunately, there are no quick, easy, or universal answers. Most of the initial answers to general questions are “it depends,” but given the facts of the case, an attorney can provide you with a more specific answer.

A brief history of child support

In the United States, laws governing and mandating child support were initiated around 1950 as an effort to reduce the number of children living in poverty. This mission has expanded to all parents, not just those living in poverty. Essentially, our government has deemed it a public good that all children have sufficient food, shelter, health care, and the necessities of life. This is the primary mission of all agencies involved in child support, from the federal to the state level. Currently the federal Office of Child Support Services cooperates with state agencies and oversees the national child support system. Their mission is to ensure that children receive support from both parents, even when they live in separate households.

At the international level, the 1992 United Nations Convention on the Rights of the Child is a binding convention signed by every member of the UN, including the United States. In short, it declares that the upbringing and development of children is the common responsibility of both parents, and an adequate standard of living is “a fundamental human right of children.” One might be surprised that this was codified into law so recently; it seems like a matter of common sense that children need someone to care for them, and an adequate standard of living.

Child support in Alabama

In Alabama, the Department of Human Resources offers assistance with child support issues, such as locating non-custodial parents, support orders, and the collection of child support payments. Although DHR’s mission has evolved over the years, it was initially founded in 1935 and continues to administer programs that aid families, such as ALL Kids health insurance, Child Protective Services, and Food Assistance. For most of our clients, their primary interaction with DHR is the Alabama Child Support Payment System, a program under the umbrella of DHR. That program facilitates the payments and disbursements for each parent that pays through their office. We always recommend that our clients pay through this system so that their payments are officially documented and the records are easy to access.

Okay, but how much will I pay?

Well, it depends. The guidelines for child support calculations rely on several figures: the income of each parent; the cost of childcare; the cost of health insurance; and the difference between each parent’s income. When all parties are totally transparent about their income and expenses, the answers are pretty straightforward. We often find ourselves, however, having to subpoena income and employment records for people who are uncooperative. We help both married, formerly married, and never-married parents get the information needed to get a correct answer.

That said, sometimes there are special circumstances that require a deviation. In some states, child support payments end upon the child’s turning 18. Here, the support continues until the child turns 19. However, if a child is disabled and will require lifetime support, that support may be extended indefinitely. There may be other mitigating circumstances, such as one parent being in prison and lacking income entirely. If one parent incurs significant travel expenses to exercise their visitation, this may result in an approved deviation from the standard. These deviations are usually negotiated by the parties’ attorneys and have to be approved by the judge. If you have unusual circumstances, this is certainly something to discuss with your attorney.

Anyone who has watched the cost of living increase knows that a child support payment that would have been sufficient in 2010 would likely not be nearly enough here in 2024. In addition to the overall changes in cost of living, one or both parents may see a significant change in income. If this happens in your situation, you can request the courts made a modification to your child support (either paid or received). We can help you assess whether the change is significant enough to go to court for a modification. We frequently assist clients with this process so that the numbers align more closely with the incomes and expenses of each parent.

What if I don’t pay my court-ordered child support?

If you are not paying your court-ordered support, you will find yourself in arrears. A person in arrears is facing not only interest charges, but can be taken to court for contempt. Many people who owe support have it automatically deducted from their paychecks and sent to the Alabama Child Support Payment Center to be sent to the other parent. This is a relatively easy, no-conflict way to make those payments. If you are in arrears, a portion of your pay may be garnished to go towards your debt. This can even happen if you move out-of-state. Your tax refund may also be garnished by the IRS, or a lien placed on your property. You will stay in arrears for as long as it takes to pay your debt, even if your children are grown and over 19.

In Alabama, parents who refuse to pay child support and have the ability to do so can be charged with criminal “nonsupport”, which could result in fines or a jail sentence. This is pretty uncommon, but it is on the books. Just something to be aware of!

At the federal level, there are circumstances in which a person in child support arrears may be sent to prison. There are several conditions on this; mainly it involves refusing to pay child support for a child who lives in another state. Being past due for a year or for more than $5000 is a criminal misdemeanor; being past due for two years or more than $10,000 is a criminal felony. In other words, if you are thinking of leaving the state to avoid child support? That turns your situation into a federal case.

However, this is only applicable in specific cases; the child support enforcement must be addressed at the local or state level before concerns are raised to the federal level.

How much can raising a kid actually cost?

Frequently, non-custodial parents will be angry and resentful that they are giving money to their child’s other parent. It may seem unfair, or like they’re providing money to the ex-partner for luxuries. However, it’s important to remember that raising children is very expensive. How much does it cost to raise a child born in Alabama this year? The estimates vary, but range from about $200,000 to $375,000. It’s easy for a non-custodial parent to not have a firm grasp on the day-to-day costs of raising a child, but the numbers don’t lie. Your child needs support from both parents to survive, and thrive.

If you’re feeling resentful about paying your child support, try to reframe the expense as feeding, clothing, and educating your child. Additionally, the best estimate right now is that the cost of replacing a full-time parent with a professional cook, cleaner, tutor, chauffeur, nanny, and nurse is estimated at around $115,000 a year. Raising children is expensive, and the primary caregiver is doing a lot of unpaid work. Truly, the way child support is calculated here is not unreasonable.

It may be hard to do this, but separating your child’s needs from your emotions about the end of your relationship with the other parent is going to lead to a better attitude about sharing expenses with them. We always recommend therapy or counseling to our clients going through difficult times, and this is certainly a topic to raise with yours. It’s best for everyone to approach the issue with an eye to what is best for your child.

As always, we are here to help. Whether the other party is an ex-spouse, ex-partner, or merely a co-parent, we know what steps to take to get an equitable child support and custody order in place. Give us a call at 251-432-7909 or request a consultation here on the website and we can get started.

Author: Jill Chancey

Jill Chancey is a New Orleans native who has called Mobile home since 2019. She attended Trinity University in San Antonio, majoring in Art History and English. She also has an MA and a PhD in Art History. After earning a certificate in Paralegal Studies, she pivoted to the legal profession after several decades as an art historian. In her free time she enjoys science fiction, art museums, and collecting and reselling vintage design.

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What is a No-Fault Divorce?

by Jill Chancey | Sep 3, 2024 | Alabama, Child Support, Custody, Divorce, Family, Family Law, Mobile

What is a No-Fault Divorce?

Simply speaking a no-fault divorce is one in which the parties are not required to give the court specific reasons for getting divorced. A couple can get divorced if they simply cannot get along anymore, rather than having to prove that one spouse did something wrong.

The no-fault divorce does not have to be an uncontested divorce, however. The law applies whether you are going to court or not. Here at Herlihy Family Law, we normally do not name any reasons other than incompatibility and breakdown of the marriage when we file a divorce complaint or agreement.

Understanding No-Fault Divorce

One concern people have when they come to us is whether they have to prove they have a legally approved reason to get divorced. In Alabama, you simply need to state that you’re incompatible, so there’s no need to give details to the court. In the past, some courts required proof that a marriage had failed for specific reasons to grant a divorce.

This might have consisted of providing proof of infidelity or abuse, for example. Luckily the law has determined that divorce is a personal decision and you don’t have to convince a stranger to let you get one.

A Brief History of No-Fault Divorce

Some people are concerned that no-fault divorce is a new idea that is contributing to the divorce rate. The first no-fault divorce law in the Western world was enacted in Prussia in 1757. In the modern era, no-fault divorces date back to the early 20^th century. And in the US, the first no-fault divorce law was enacted in 1969, over 50 years ago. Within ten years the no-fault option was nearly universal in the United States. The divorce rate in the US has actually fallen since the 1970s.

Regardless, one of the main advantages is that these laws can decrease the adversarial nature of a divorce. The previous model tended to increase conflict and even resulted in perjury and false accusations. For example, judges now do not need to determine whether a party has been unfaithful.

In the United States, every state permits no-fault divorce, although the requirements may vary. Some require a specific period of separation, for example. In Alabama, this is not the case. Alabama does require a six-month residency for at least one party. Fortunately, the pre-Civil War Alabama law that required the approval of both houses of the state legislature to grant a divorce is no longer on the books!

Benefits of a No-Fault Divorce

The no-fault option allows the parties to separate the negotiation process from the emotional desire to assign blame or be proven blameless. We know that both parties may be angry, or hurt, or feel betrayed. This doesn’t have to carry over into the divorce negotiation. The emotional side of divorce is better handled by experienced and trained counselors and therapists. Your attorneys are only qualified to handle the legal side of the matter.

If both parties are ready and willing to get divorced, they can choose an uncontested divorce. This is a great option for couples who are low-conflict and able to negotiate in good faith. If it’s possible to negotiate an agreement without going to court, it is far less expensive and time-consuming than a contested divorce through the courts. It’s also likely to result in less ongoing conflict.

Does a No-Fault Divorce Mean I Can’t Even Mention My Spouse’s Faults?

Not necessarily. In an uncontested divorce, your spouse’s faults are irrelevant and do not come into play at all. If the parties are not in agreement and choose a contested divorce, the court may consider bad behavior, such as domestic violence and drug or alcohol abuse, when the case comes to trial. No-fault divorce means neither party has to prove the accusations to actually get divorced.

They do, however, have to provide evidence to back up any accusations if they choose to bring these to the attention of the court and are asking for a decision based on these behaviors. This is most likely to come into play when children are involved, as the safety and well-being of the parties’ children come first in making custody decisions.

If there is evidence of mental illness that endangers the children, this could also become part of the case in a contested divorce. It is not enough to say the other party is being treated for a mental illness, though. Many people find themselves in need of help with depression and anxiety, for example, especially when they’re in a failing marriage.

What matters is that they are getting the help they need and are capable of being good parents. Simply seeing a therapist is not grounds for losing custody.

The Uncontested No-Fault Divorce

Why would you need an attorney to help in a no-fault uncontested divorce? There are two main parts to the process. We start by helping you negotiate your divorce agreement with the other party or their attorney. Once the agreement is in place, we then generate all of the documents required by the court and file them for you.

Sometimes both parties will be in perfect agreement about everything, so we don’t have to help negotiate at all. We draw up the documents, everybody signs, and we file them with the court. After 30 days, they will go to the judge for approval.

You might think (or hope!) that it’s as simple as filing one signed agreement, but several other documents must be filed. This can be up to 7 or 8 documents, depending on your circumstances.

At Herlihy Family Law we have many years of experience handling divorces in Mobile and Baldwin Counties and know exactly what the state, county, and individual judges require.

The Contested No-Fault Divorce

If the parties are not in agreement, your attorney will file a divorce complaint, or respond to your spouse’s. We then guide you through the whole process up to and including a court trial if it comes to that.

Even in the case of a contested divorce, you do not have to persuade a judge to allow you to get divorced. The judge’s job is to determine a fair and equitable agreement based on the law and the facts presented to him or her.

What if I Really Want an At-Fault Divorce?

It’s really not necessary to name and blame in most divorce cases. Consider whether you truly want all of your faults exposed as well, and whether you want all of the unpleasant details of your marriage on the record.

Playing the “blame game” is going to distract you both from the legal issues we are here to assist with. It’s also going to end up costing more money if your attorney has to get involved with proving (and defining!) infidelity, for example.

We do understand the desire to tell the world about your spouse’s terrible behavior; however, fault does not typically affect the outcome of the divorce as much as you might think it should.

Since I Don’t Have to Prove I Deserve a Divorce, What Do I Need to Consider to Move Forward?

The most difficult parts of a divorce agreement are often child custody and child support. You can search our blog for more information about these issues. Some agreement terms can be entirely individual, whereas others must conform to the statutes and standards.

For example, some statutes determine the amount of child support. This is based on a formula that takes into account both parties’ incomes, the cost of healthcare, and the cost of work-related childcare. The amount determined can be altered by agreement, but the judge will need a reason for the deviation from the formula.

The rest of the agreement covers property, assets, and debts. The goal here is an equitable distribution, which doesn’t necessarily mean a 50/50 split. Determining factors include the length of the marriage, what assets and debts a party brought into the marriage, and the income of both parties during the marriage. Pensions and retirement accounts are taken into consideration as well. This can also be very contentious, but we are experienced negotiators and handle this every day.

We also ensure that both parties come to an agreement about the division of personal property, cars and other vehicles, and their pets. (Yes, you can put your pets in your divorce agreement!).

Ready to Talk to an Attorney?

Call the office at 251-432-7909 to schedule a consultation, or go to the homepage of our website and click on “request a consultation.” We are open five days a week and can offer both in-person and Zoom meetings. In a consultation, you will discuss your case, your options, and our fees.

Author: Jill Chancey

Jill Chancey is a New Orleans native who has called Mobile home since 2019. She attended Trinity University in San Antonio, majoring in Art History and English. She also has an MA and a PhD in Art History. After earning a certificate in Paralegal Studies, she pivoted to the legal profession after several decades as an art historian. In her free time she enjoys science fiction, art museums, and collecting and reselling vintage design.

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How Does Alimony Work? An Essential Guide for Understanding Alimony Laws

by Alison Herlihy | Jun 6, 2024 | Alabama, Child Support, Children, Divorce

How Does Alimony Work? An Essential Guide for Understanding Alimony Laws

Alimony comes down to two basic pieces of information – need and ability to pay. After the need and ability to pay have been established, the court will consider other important factors such as the length of the marriage and fault. Just because the parties have been married a long time or one spouse makes a lot of money, does not automatically mean there will be alimony. While fault, such as infidelity, can be considered by the Court, fault does not automatically mean there will be alimony ordered in any given divorce either.

Alabama Law and Alimony

In Alabama, Alimony is governed by Alabama Code 30-2-57, the entire text of which is stated below. The divorce court is required to make a multiple-part analysis and issue an order containing specific findings of fact stating why alimony was ordered pursuant to the statute. If the Judgment of Divorce fails to contain those findings, it can be reversed by the Court of Civil Appeals.

The first key factors are the need and ability to pay. Both of these must be present for a court to award alimony in a divorce. If the need and ability to pay are both present, the award of alimony must still be fair considering the overall totality of the circumstances of that specific case.

The key factors a Court will consider that relate to the potential receiving spouse’s need would be any separate assets of that spouse, what assets they are receiving in the divorce, and what the lifestyle of the parties was like during the marriage. The court will also consider their own ability to earn, which considers their employment history, educational background, age, physical health, and other factors. The court must find that the receiving spouse cannot support themselves, through earnings, assets, or a combination, without receiving support from the other spouse, in order to award alimony.

If the Court determines that the requisite need does exist, then the Court must consider the paying spouse’s ability to pay. The ability to pay means that the paying spouse must be able to financially provide the support without incurring undue financial hardship themselves. In determining ability to pay, the Court will consider the paying spouse’s earnings, or ability to earn, their assets, and the amount of any obligations they will be required to pay in the divorce, including marital debts and child support.

Once the need and ability to pay have been established, the next key factor is the length of the marriage. According to the alimony statute, the Court cannot order periodic (or permanent) alimony in a divorce, absent extraordinary circumstances, unless the parties have been married over 20 years. If the parties have been married less than 20 years, it is presumed that any alimony would be rehabilitative alimony, which is limited to a time certain and designed to help the receiving spouse get back on their feet and eventually be self-supporting after the divorce. It is also presumed that rehabilitative alimony should not exceed five years. In any marriage less than 20 years, alimony should also not be awarded for a period longer than the marriage, absent extraordinary circumstances.

If alimony is at issue in your divorce, it is important that you have an experienced lawyer who can help you navigate the potentially complex legal analysis involved when a Court considers awarding alimony in a divorce.

30-2-57. Rehabilitative or periodic alimony

(a) Upon granting a divorce or legal separation, the court shall award either rehabilitative or periodic alimony as provided in subsection (b), if the court expressly finds all of the following:

(1) A party lacks a separate estate or his or her separate estate is insufficient to enable the party to acquire the ability to preserve, to the extent possible, the economic status quo of the parties as it existed during the marriage.

(2) The other party has the ability to supply those means without undue economic hardship.

(3) The circumstances of the case make it equitable.

(b) If a party has met the requirements of subsection (a), the court shall award alimony in the following priority:

(1) Unless the court expressly finds that rehabilitative alimony is not feasible, the court shall award rehabilitative alimony to the party for a limited duration, not to exceed five years, absent extraordinary circumstances, of an amount to enable the party to acquire the ability to preserve, to the extent possible, the economic status quo of the parties as it existed during the marriage.

(2) In cases in which the court expressly finds that rehabilitation is not feasible, a good-faith attempt at rehabilitation fails, or good-faith rehabilitation only enables the party to partially acquire the ability to preserve, to the extent possible, the economic status quo of the parties as it existed during the marriage, the court shall award the party periodic installments of alimony for a duration and an amount to allow the party to preserve, to the extent possible, the economic status quo of the parties as it existed during the marriage as provided in subsection (g).

(c) In cases in which a party has proven a lack of means to acquire the ability to preserve, to the extent possible, the economic status quo of the parties as it existed during the marriage, but there exists a present inability of the other party to supply those means, a court, when the circumstances of the case make it equitable, shall reserve jurisdiction to award rehabilitative or periodic alimony. If there is neither an award of alimony nor a reservation of jurisdiction at the time of the divorce, the court shall permanently lose jurisdiction to subsequently make an award of rehabilitative or periodic alimony.

(d) In determining whether a party has a sufficient separate estate to preserve, to the extent possible, the economic status quo of the parties as it existed during the marriage, the court shall consider any and all relevant evidence, including all of the following:

(1) The party’s own individual assets.

(2) The marital property received by or awarded to the party.

(3) The liabilities of the party following the distribution of marital property.

(4) The party’s own wage-earning capacity, taking into account the age, health, education, and work experience of the party as well as the prevailing economic conditions.

(5) Any benefits that will assist the party in obtaining and maintaining gainful employment.

(6) That the party has primary physical custody of a child of the marriage whose condition or circumstances make it appropriate that the party not be required to seek employment outside the home.

(7) Any other factor the court deems equitable under the circumstances of the case.

(e) In determining whether the other party has the ability to pay alimony, the court shall consider any and all evidence, including all of the following:

(1) His or her own individual assets, except those assets protected from use for the payment of alimony by federal law.

(2) The marital property received by or awarded to him or her.

(3) His or her liabilities following the distribution of marital property.

(4) His or her net income.

(5) His or her wage-earning ability, considering his or her age, health, education, professional licensing, work history, family commitments, and prevailing economic conditions.

(6) That he or she has primary physical custody of a child of the marriage whose condition or circumstances make it appropriate that he or she not be required to maintain employment outside the home.

(7) Any other factor the court deems equitable under the circumstances of the case.

(f) In determining whether the award of rehabilitative or periodic alimony is equitable, the court shall consider all relevant factors including all of the following:

(1) The length of the marriage.

(2) The standard of living to which the parties became accustomed during the marriage.

(3) The relative fault of the parties for the breakdown of the marriage.

(4) The age and health of the parties.

(5) The future employment prospects of the parties.

(6) The contribution of the one party to the education or earning ability of the other party.

(7) The extent to which one party reduced his or her income or career opportunities for the benefit of the other party or the family.

(8) Excessive or abnormal expenditures, destruction, concealment, or fraudulent disposition of property.

(9) All actual damages and judgments from conduct resulting in criminal conviction of either spouse in which the other spouse or child of the marriage was the victim.

(10) Any other factor the court deems equitable under the circumstances of the case.

(g) Except upon a finding by the court that a deviation from the time limits of this section is equitably required, a person shall be eligible for periodic alimony for a period not to exceed the length of the marriage, as of the date of the filing of the complaint, with the exception that if a party is married for 20 years or longer, there shall be no time limit as to his or her eligibility.

(h) An order awarding rehabilitative or periodic alimony may be modified based upon application and a showing of material change in circumstances.

(i) Rehabilitative or periodic alimony awarded under this section terminates as provided in Section 30-2-55, or upon the death of either spouse.

Ala. Code 30-2-57 Rehabilitative or periodic alimony (Code Of Alabama (2024 Edition))

Author: Alison Herlihy

Family law attorney Alison Herlihy is a native of Mobile, Alabama. Alison has engaged in the private practice of family law since 2005, focusing primarily on domestic relations, divorce and child support, child custody law, adoption law, juvenile, probate practice, and wills.

Alison Baxter Herlihy earned the prestigious AV Preeminent peer review rating from Martindale-Hubbell, which recognizes attorneys for the highest levels of legal ability and professional ethical standards. Alison is a certified Guardian Ad Litem. In 2015, Alison became a Registered Mediator on the Alabama State Court Mediator Roster, in both general and domestic relations mediation.

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