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))

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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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How to get divorced with kids involved in Mobile, AL in 2024

by Walter Gewin | Feb 27, 2024 | Alabama, Child Support, Children, Divorce, Family Law, Mobile

How to get divorced with kids involved in Mobile, AL in 2024

When people are considering divorce and they have a family, one of the most common questions we hear is how to get divorced with kids involved.

Unfortunately getting divorced is often a difficult experience for all family members, which often includes the children of the marriage.

However, there are ways to lessen the involvement and limit the trauma experienced by children due to the divorce.

Children are technically not parties to divorce proceedings; however, custody, visitation for the non-custodial parent, and child support are all matters covered in divorce. Therefore children’s involvement and their knowledge of the same must be taken into account by the divorcing parties.

Undoubtedly, the best course of action is to not involve children in their parents’ divorce. As divorce is an adult matter, unnecessarily involving minor children in the process can have harmful effects on minor children. The children are more than likely not equipped with the ability to understand the divorce and how they as children are involved.

Children’s well-being should be prioritized during this often difficult transition and professional help, including therapy, utilized if needed.

Because the parties will ultimately be divorced from one another either through an agreement or through the ultimate trial, children must have the tools that they need to cope and be successful with their parents’ new custody and visitation arrangement as ordered by the Court.

In some cases, there can be another layer of complexity involved, necessitating the appointment of a Guardian Ad Litem to represent the children’s best interests in the divorce case.

Guardian Ad Litems can help advocate for the minor children’s best interests, examine the evidence presented in the case, cross-examine witnesses, and give a recommendation to the Court regarding custody and visitation.

The Court can appoint a Guardian Ad Litem at their discretion when requested by either party. However, the involvement of a Guardian Ad Litem is not always necessary and is more common when there are allegations of abuse, drug use, criminal activity, and other concerns present.

When parents are divorcing, it is important to remember that more than likely both adults will have a role to play in the children’s lives post-divorce until the children become adults and reach the age of majority (19 years old), whether that be having custody or regular visitation with the children.

Therefore, a level of civility is necessary to continually co-parent children, attend school/extracurricular functions together for the children, jointly participate in the children’s medical care, and communicate effectively with the other parent.

Divorce can be a great opportunity for both parties to start anew and utilize efficient and practical co-parenting skills to best promote their minor children’s best interests and position them for success.

Children should be allowed to be children and not feel responsible for their parent’s divorce or be forced to be a part of the legal proceedings.

Working together to successfully co-parent the minor children is in everyone’s best interest and helps ensure that the focus remains on the minor children.

Author: Walter Gewin

Attorney Walter Gewin is a native of Mobile, Alabama. After graduation from law school, Walter clerked for Circuit Court Judge John Lockett before pursuing a career in the private practice of law. Initially, practicing a wide variety of law; Walter’s practice has become more focused on family law, including juvenile, probate, and domestic relations matters. Walter also currently serves as a certified Guardian Ad Litem in Dependency, Delinquency, and Domestic Relations matters.

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How Long Does a Divorce Take? Essential Information Explained.

by Anna Eden | Oct 17, 2023 | Child Support, Custody, Division of Assets, Divorce

How Long Does a Divorce Take? Essential Information Explained.

One of the most frequently asked questions in a divorce consultation is, “How long does a divorce take?” and the answer to that question varies based on several factors.

The type of divorce you’re filing, the amount of assets you have, whether child custody is involved, and if there are related criminal charges pending all play a major role in determining how much time your divorce process will take.

Uncontested Divorce vs Contested Divorce

The number one factor in determining the answer to “How long does a divorce take” is whether you’ll be filing for an uncontested divorce or a contested divorce.

Uncontested divorces, in the simplest terms, are ones where the parties agree on everything up front, so the only time involved is how long it takes to draft the necessary paperwork plus the statutory 30-day waiting period after filing. All in all, a true uncontested divorce can be fully resolved within 6 to 10 weeks.

If you are filing a contested divorce, then the time it takes for everything to be finalized is more complex due to aspects like child custody and child support. Some divorces start as contested, but the parties are able to reach a settlement relatively soon after filing.

These cases could end up being resolved within a matter of months. In other cases, however, parties will not be able to agree and will need a trial. These cases could take anywhere between 10 to 15 months to resolve.

This is because there are many “phases” of contested divorces, the longest and most necessary being the discovery phase. Discovery alone can take 3 to 6 months to complete depending on the amount of information needed in a case, including obtaining this information via subpoenas or depositions if the exchange of paper discovery is not enough.

Generally speaking, the complexity of your case is going to determine the amount of time it takes. On average, a contested divorce will take about 1 year to be completely resolved.

Criminal Charges

Unfortunately, some divorce filings stem from criminal actions, or criminal activity may occur while a divorce is pending. The most common criminal charge associated with a divorce is domestic violence in some form.

When there is a criminal charge pending that is substantially related to a pending divorce case, the defendant in the criminal matter has the right to request the Court to stay the divorce proceedings, and the Court almost always grants the request.

This is because the accused party has a 5th Amendment right against self-incrimination, even in a civil matter like a divorce, and any information obtained during the divorce proceedings could be used against them in the criminal case.

When a divorce is stayed for a criminal matter, the divorce will remain pending with no activity until the criminal case is completely resolved. Depending on the severity of the charge(s), the stay can be in place for a few months to a year or more.

During the stay, your divorce case will be placed on the Court’s Admin Docket and the parties will be required to update the Court on the status of the criminal case every few months.

Case Management Conferences and Disposition Dockets

For residents of Mobile County, our domestic relations judges have put into place two systems to ensure that cases on their dockets move at a steady pace and do not “fall through the cracks.”

The Case Management Conference (“CMC”) is a virtual meeting set by the Court in the Pre-Trial Order. Attendance at the CMC may be waived if lawyers or unrepresented parties file a Status Report with the Court at least 24 hours prior to the CMC that describes the following: whether a good faith effort has been made to settle the case; whether discovery is completed, or an estimate of time necessary to complete discovery, if it is not; whether the case is ready for trial; the estimated time required for the final hearing/trial; identification of all unresolved issues to be tried; whether the case requires an immediate hearing and the reason(s) for the urgency; and the email addresses for all unrepresented parties (if known, applicable, or ascertainable). After the CMC, the case will either be set for trial or placed on the Court’s Disposition Docket.

The Disposition Docket is similar to the Admin Docket described above. It is also administrative in nature so that the Courts can keep up with the active cases on their docket. It is not a hearing or trial date to appear in Court.

It is simply a placeholder date for the attorneys to check in with the Court via appropriate motion regarding the present status of the case; i.e., is more time needed for discovery, are the parties attempting mediation or in settlement negotiations, or is the case ready for trial.

Cases are typically set out on Disposition Dockets for 30-90 days at a time. The Courts use the Disposition Docket to track how long a case has been pending. If a case has been pending for almost a year, then typically the Court will notify the attorneys and parties involved that the case will not be set over to the next Disposition Docket and will set the case for trial.

This is because the Courts have just as much of an interest in making sure your divorce case is moving at a steady, efficient pace toward final resolution as you do.

At Herlihy Family Law, it is our goal to guide you out of and through a negative life situation and to a new future for yourself and your children as efficiently as possible. While there isn’t a clear answer to “How long does a divorce take”, hopefully, this gives you a better idea of the factors involved.

Author: Anna Eden

Attorney Anna Eden is a native of Mobile, Alabama. Prior to joining Herlihy Family Law, Anna worked as a law clerk for Circuit Court Judges Michael Windom and Michael Sherman. It was during her time clerking for Judge Sherman that Anna discovered her passion for helping people navigate the complex and emotional issues involved in family law.

Anna aids in the representation of individuals across a variety of family law issues, including divorce and child support, juvenile law, child custody law, probate, and wills.

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4 Things That Will Make Your Divorce Easier

by Anna Eden | Aug 10, 2023 | Child Support, Custody, Divorce, Uncategorized

4 Things That Will Make Your Divorce Easier

If you are considering divorce or currently working through a divorce, this can be a stressful and tough experience. But there are several things you can do to make your divorce process easier and alleviate some of the stress.

In this article, we are going to share 4 things that will make your divorce easier. Divorce is never easy, but following these steps will help make the process better.

1. Hiring an Experienced Attorney

Divorce is complex regardless of whether you’re filing contested or uncontested. Contested divorces, especially ones where children are involved, require skill and knowledge of the law to navigate well.

While you may just be focused on “winning,” an attorney will be able to look at the big picture and work to negotiate the best deal possible for you and your family. Uncontested divorces require more paperwork than you think, and not having everything filed correctly the first time can cause serious delays which would result in you staying married for longer than you want to be.

Attorneys are also able to access the Courts more easily than the average person and are more familiar with their local Court system and staff, so this allows the process to be as streamlined as possible.

Overall, hiring an experienced divorce attorney allows you the benefit of using their expertise to both protect your interests and avoid costly mistakes.

2. Being Open to Mediation

If you are getting divorced, it does not mean that you have to fight and litigate every single issue. Mediation is an excellent method of alternative dispute resolution that allows you to come to an agreement without having to battle things out in Court.

It is not only cost-effective, as it can save you the expense of trial, but it also allows you to negotiate terms so they are more narrowly tailored to your family’s needs, especially if you have children. This may include agreements related to education expenses, large purchases like vehicles, maintaining cell phones, insurance policies, etc.

These types of agreements that anticipate future expenses may not be considered by the Court, so mediation is the best way to make sure these things are taken care of to prevent conflict down the road. Mediation may not necessarily be successful for everyone, but not giving it a chance could be detrimental to your case in the long run.

Mediation is a way to facilitate cooperation and have couples focus on coming to a resolution, rather than focus on the fight.

3. Having a Financial Plan

Divorce is costly. Everyone knows this. That is why having a financial plan both during and after your divorce is crucial. Sticking to a strict budget and cutting back on expenses are two ways that you can ensure that your divorce won’t break the bank.

If you have not yet filed for divorce, but know that it’s on the horizon, it’s also important to take proactive steps in getting your finances in order. Make yourself aware of your current earnings, your earning potential, how much you have in savings or set aside for retirement, your debts, and make a detailed list of all of your current monthly expenses.

Having a clear picture of your financial situation before your divorce is filed will make things much easier down the road when you’re trying to adjust to your new life financially. It will also help your attorney when the time comes to participate in settlement negotiations. Some people cannot do this on their own, though, and need the help of an accountant or financial planner – this is not a bad idea!

Finances are not easy to navigate, especially when they’ve been co-mingled with a spouse. Regardless, having a financial plan in place for yourself will ease the divorce process and alleviate some of the stressors you will encounter.

4. Prioritizing Your Mental Health

Taking care of yourself emotionally, physically, and mentally should be some of your main priorities when going through a divorce. You are going through a major life transition, and your stress and anxiety levels are going to be elevated.

You do not need to allow your mental and emotional well-being to deteriorate as it will only make things more difficult. The grief of divorce is often compared to the loss of a loved one in terms of intensity. Allow yourself to process and feel all of the emotions you may experience in a healthy way instead of holding them back. Simple things like eating nourishing foods and getting enough sleep will also help you.

Also avoid negative thought patterns and blaming yourself for the breakdown of the relationship. Maintaining hobbies that you love, seeking counseling or therapy, and surrounding yourself with family and friends that support you are all ways to maintain some level of comfort and security during your divorce.

Conclusion

Divorce proceedings can be tough on anyone. Everyone would prefer to have a peaceful divorce. To improve your chances of a successful divorce, we recommend following these steps to make your divorce easier.

Having an experienced divorce lawyer on your side is always recommended. Especially if there are child custody or child support aspects to your divorce.

Schedule a private consultation with one of our family law attorneys

Author: Anna Eden

Attorney Anna Eden is a native of Mobile, Alabama. Prior to joining Herlihy Family Law, Anna worked as a law clerk for Circuit Court Judges Michael Windom and Michael Sherman. It was during her time clerking for Judge Sherman that Anna discovered her passion for helping people navigate the complex and emotional issues involved in family law.

Anna aids in the representation of individuals across a variety of family law issues, including divorce and child support, juvenile law, child custody law, probate, and wills.

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Top 2 Mistakes Made When Getting Divorced Without An Attorney

by Alison Herlihy | Jul 24, 2023 | Alabama, Child Support, Children, Custody, Division of Assets, Divorce, Family Law, Significant Decisions, Uncategorized

Top 2 Mistakes Made When Getting Divorced Without An Attorney

What if there are no attorneys involved at all?

In recent years, there has been a proliferation of websites and services that promise they will sell you a simple and easy set of “do-it-yourself” divorce papers for as low as $99!

Have you ever heard of that old saying – you get what you pay for? Well, that is as true in the legal world as anywhere else.

We have represented countless clients over the years who purchase “do-it-yourself” divorce papers from an online service only to find that the papers are not in compliance with state and local requirements.

In Alabama, there are several other forms required along with your signed agreement when you file an uncontested divorce. In every divorce case, the Defendant must sign an answer and waiver form, and you must prepare a proposed Judgment of Divorce order for the judge to sign.

If you have children, there are even more forms that are required by the State of Alabama, including CS-41 income affidavit forms for both parties, CS-42 child support guidelines, and a CS-43 notice of compliance form.

Additionally, when you have children, the agreement itself has numerous required provisions that must be included, such as that both parties must attend a parenting class, specific language for an income withholding order for child support, and the entire text of the Alabama Parent-Child Relationship Protection Act.

If you file your divorce papers with no attorneys involved, and the paperwork is incorrect, the Clerk of Court will flag the paperwork and it will not even be sent to the child until the paperwork is corrected.

Here is the catch – the clerk of court cannot give you legal advice to explain to you how to correct the paperwork, so oftentimes clients end up hiring our office to re-file the correct paperwork after they have already had to pay for a “do-it-yourself” divorce.

If your paperwork is incorrect and your filing is flagged, the clerk will set a deadline in your case called a “disposition docket,” which means you have until that date to submit corrected paperwork.

If you don’t meet the deadline, your case will be dismissed. If your case gets dismissed, and you have to re-file for divorce, you will have to pay a second filing fee to the court.

The moral of the story is, if neither party has an attorney, you might end up having to pay for your divorce twice.

What if my spouse has an attorney and I don’t?

In Alabama, divorce lawyers are not ethically permitted to represent both parties in a divorce case. Even if you agree on everything, a lawyer can only represent one party.

I cannot begin to count all the clients I have met with over the years who have told me, “When we got divorced, we used the same attorney.” I end up having to explain to them that that means their spouse had an attorney, and they did not.

This type of client is typically in my office because they did not understand the agreement they signed or they are dissatisfied with it in some way. Unfortunately for this client, there are limited circumstances under which you can change the terms of a divorce decree by an agreement that has already been entered by the court.

Often, these clients are stuck with unfavorable terms that they agreed to because they chose to sign an agreement without getting legal advice. Any terms of your divorce that are related to assets and debts are final when the divorce is final, and are not modifiable.

Terms of your divorce that relate to child custody, visitation, and child support can be modified but only if there has occurred a sufficient change in circumstances since the divorce was granted.

If your spouse hires a lawyer to draft up the paperwork, your choices are either (a) get your own lawyer, or (b) proceed without a lawyer.

If you choose to proceed without a lawyer, that means you have no one to obtain legal advice from if you have questions about what you are legally entitled to or what is fair. Your spouse’s lawyer’s job is to do what is best for your spouse, not you.

For example, say you and your spouse jointly own your marital home together, with both of your names on the deed and mortgage. You agree your spouse can keep the house, and their lawyer draws up a divorce agreement that says you will deed the property over to your spouse.

If you choose not to obtain your own legal advice, you may not know or understand that signing a deed will not remove your name from the mortgage.

As stated earlier, matters related to assets and debts are not modifiable.

This means that you are now stuck with your name on a joint mortgage with your ex-spouse! If they make the payments late, this will hurt your credit. Even if they make the payments on time, having your name on this mortgage may prevent you from being able to qualify for your own mortgage for years to come.

As you can see from the very common example above, even a one-time consultation with their own divorce lawyer could have saved this client from a very costly mistake.

If you are considering divorce and you’re not sure if you should hire a divorce lawyer, schedule a private consultation with one of our experienced divorce attorneys today.

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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Do you have to pay child support if you have joint custody in Alabama?

by Alison Herlihy | Jun 26, 2023 | Alabama, Child Support, Children, Custody, Divorce, Uncategorized

Do you have to pay child support if you have joint custody in Alabama?

Wondering do you have to pay child support if you have joint custody in Alabama?

First, let’s talk about what joint custody is exactly because joint custody means a lot of things to a lot of people. When it comes to custody laws in Alabama, it is the state policy in Alabama, whether parents are divorced or have never been married, that it is in the best interests of children to have frequent and meaningful contact with both parents, as long as they are fit parents; however, joint custody does not necessarily mean equal physical custody.

Joint Legal Custody

Joint Legal Custody means both parents have equal rights and responsibilities for major decisions concerning the child, including, but not limited to, the education of the child, health care, and religious training. The court may designate one parent to have sole power to make certain decisions while both parents retain equal rights and responsibilities for other decisions. Ala. Code 30-3-151 Definitions (Code Of Alabama (2023 Edition)).

Joint Physical Custody

Joint Physical Custody means physical custody is shared by the parents in a way that assures the child frequent and substantial contact with each parent. Joint physical custody does not necessarily mean physical custody of equal durations of time. Ala. Code 30-3-151 Definitions (Code Of Alabama (2023 Edition)).

Although equal durations of time are not required under the law, the most common form of joint physical custody is alternating weeks, so as to promote stability for children after a divorce or after their never-married parents’ relationship is over.

In the past, there has been no set rule for how to calculate child support in a joint physical custody scenario. Joint physical custody was always considered to be a reason to deviate from what the state of Alabama guidelines call for in child support.

New Amendment in Alabama and Joint Custody

The Alabama Supreme Court has passed an amendment under the rules of Judicial Administration (ARJA Rule 32), which specifically sets out how an Alabama child support payment is to be calculated in a joint custody situation. You can find the entire text of these amendments here:

https://judicial.alabama.gov/docs/rules/OrderonRule32AlabamaRulesofJudicialAdministration.pdf

Under the amended rules, there are specific forms and guidelines that must be followed to calculate child support in a joint physical custody arrangement. There is a key difference between the requirements under this rule and the state statute regarding joint physical custody.

The child support rules use the term shared physical custody, which refers to a court-ordered physical custody arrangement whereby each parent retains physical custody of a child 50% (or approximately 50%) of the time. A scenario where parents alternate custody on a week-on, week-off basis would meet this definition.

This new rule means that there are child support guidelines that must be followed and complied with in a shared physical custody arrangement. Although every case is different, it is likely that if one parent earns significantly more money than the other, there will be child support; whereas, if the parents make the same amount of money, there may not be child support or there may be minimal child support.

Again, every case is different and your attorney will have to calculate child support based on the facts of your particular case.

There is also a very significant except to this new rule regarding child support and shared physical custody – if a parent wilfully fails to exercise their parenting time for more than 14 days in a 12-month period, the court may consider that failure to exercise physical custody as a material change of circumstances sufficient to support a modification of child support.

In other words, the Court does not have to calculate child support based on shared custody if one of the parents fails to exercise their shared custody according to their court order.

If you are considering divorce, a modification of custody or support, or you are a never-married parent seeking a custody order for the first time, these new rules and regulations about joint or shared physical custody and child support are very timely because these new rules went into effect on June 1, 2023.

If you think the new rules about joint custody or shared custody and child support may apply to your situation, contact our office for a consultation.

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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