Friday, January 15, 2016

COMMON MISTAKES THAT CAN RUIN
YOUR ALABAMA DIVORCE

            So here we are. You are getting divorced – or at least you think you are. And with those thoughts come questions. Perhaps hundreds, or thousands of thousands. I would all but guarantee you that I’ve heard them all before. Can you make it without your spouse? Can you afford a divorce? What about the kids? What is going to happen next? Like I said, I’ve heard them before.
           
            The first question you need to ask yourself is if you want this. What will it do to your family? After all, divorce is first and foremost the destruction of a family. You need to really search your soul and make sure this is the right decision for you and those you love most, such as your children. Because if you go through with it, things will never be the same. The next thing you need to do is familiarize yourself with the rules of the game you will be playing and make sure you don’t make any of these costly mistakes.

I.
DON’T FAIL TO EDUCATE YOURSELF

            First of all, if you or your child is a victim of domestic violence, leave now. Don’t wait around for the divorce process to being. Don’t compromise your safety, or the safety of a defenseless child, for vows that obviously aren’t sacred to your spouse. Get out, get safe, and get help.

            Alabama has not always had no-fault grounds for divorce but the state legislature added incompatibility of temperament and irretrievable breakdown of the marriage as grounds in 1971.  If you can prove you and your spouse have such conflicts in your personalities and the way you approach life in general and you can’t fix those conflicts, you can get a divorce under irreconcilable differences. If you can prove it is impossible to live “in peace and happiness” with your spouse, you can get a divorce under the ground of incompatibility. 

            Alabama also has several fault-based grounds for divorce if one party had more of a hand in breaching the marital contract. These grounds are much harder to prove than incompatibility or irretrievable breakdown of the marriage.   However, these grounds may be a major factor the division of assets if the fault of one party is shown to have caused the breakdown of the marriage. There are twelve grounds on which a party may obtain a fault-based divorce. They are as follows:

            1.         Natural Impotency: the impotency must have existed at the time of the marriage and the party seeking a divorce must not know about it until after the marriage.

            2.         Adultery: the parties cannot plan for one of them to commit adultery for the purposes of obtaining a divorce and the parties cannot reconcile after the adultery.  Adultery occurring after the filing of a divorce action cannot be the sole basis for this ground.

            3.         Imprisonment: the offending spouse must be imprisoned in a penitentiary for at least two years.

            4.         Crime Against Nature:  “The commission of the crime against nature, whether with mankind or beast, either before or after marriage.”

            5.         Desertion: the intentional and willful abandonment of the marriage by one spouse for at least one year without consent of the other spouse, just cause, or excuse.

            6.         Habitual Drunkenness or the Use of Drugs or Narcotics: the offending spouse must frequently abuses alcohol, drugs or narcotics, the abuse of substance must have a negative impact on the marriage, and the abuse of substance must be ongoing at time of filing of the complaint for divorce.  

            7.         Incurable Insanity: your spouse must have been confined to mental hospital for five years in a row and are still hopelessly insane at the time of filing of the complaint for divorce.

            8.         Violence or Fear of Violence or Cruelty: the act must occur prior to filing complaint for divorce.  Cruelty is comprised of acts that may tend to shock the sensibilities and cause grief. 

            9.         Pregnancy of the wife by another person: the pregnancy must have existed at the time of the marriage and the offended spouse must not have known of the pregnancy at the time of the marriage.

            10.       Separation without Support:  must take place immediately preceding date of filing of divorce.

            11.       Incest: either party may divorce the other within the degrees of kindred between whom marriage is prohibited by law. A person cannot marry his or her parent, step-parent, grandparent, aunt, uncle, widowed son-in-law or daughter-in-law, or first cousin. Incestuous marriages are void from the beginning and cannot be converted into a valid marriage.

            The courts have interpreted the application of these fault-based grounds through years and years of case law. No two divorces include the exact same facts, hence there are literally hundreds of opinions on what set of facts and circumstances constitute one or more these grounds and entitle one of the parties to a divorce. Even if you believe that you have rock solid grounds for divorce based on the twelve options, you will most likely find it isn’t as easy as it may appear. In the next chapter, we’ll look at some of the most common mistakes parties seeking a fault-based divorce can make.





II.
DON’T SHOOT YOURSELF IN THE FOOT

            Consider the following scenario: a wife discovers her husband of over ten years has been having an affair. She has emails between her husband and his paramour in which they both express their love for one another, there are also receipts from Victory Secret for hundreds of dollars, but she hasn’t received any such gifts from her husband in years. The husband’s cell phone records show that he and his paramour talk every day, sometimes for hours at a time. Then there is the nail in the coffin, a dear friend of the wife saw the husband and his paramour at a restaurant in a town a few miles over. Not only did she see him, she took a picture with her cell phone that captures his hand on the other woman’s leg, and his lips on her lips.

            The wife is infuriated, hurt, and scared. She confronts her husband and he simply can’t deny it. He’s had a girl on the side for years, often more than one at a time. The wife kicks him out of the house and he moves into a hotel for a week, then to an apartment. Over the course of the next few months he only returns to the marital home to see the kids a few times a week. There is no talk of divorce yet, but the marriage is all but lost and it’s only a matter of time. But there is still something between them. And soon after, text messages asking when he can come visit the kids start including apologies for what he has done. The husband apologizes profusely, begs his wife’s forgiveness, and ask for another chance. He still loves her and still loves his family. A few more weeks go by and then the wife agrees to meet him for dinner to talk about things. Seeing one another again reminds them of the early years of their marriage and how happy they were. This one-time meeting turns into a few more dates and, six months after being kicked out of the house, the husband moves back in. She has forgiven him and wants him back, he just has to promise never to do it again.

            Their routine quickly returns to the way it was before and the husband keeps his promise to remain faithful. But as the time passes, the wife realizes that she is never going to be able to forget what he has done, never going to be able to trust him again. She tries to make it work, but eventually tells her husband that she is having doubts about their marriage. She still resents him and can’t get the picture of him and that another woman out of her head. They try counseling, couples therapy, they even talk to their pastor about it. But nothing can be done, it’s over and she wants a divorce.

            This scenario happens a lot. Alabamians are, for the most part, a people of faith and that faith tells them to forgive, forget, and stick together. But life is harder than that and sometimes a trust that’s been broken can never be put back together. Unfortunately for the wife in our example, she is likely not getting a divorce based on her husband’s adultery. By forgiving him (if only for a little while) and allowing him to return to the marital home and resume marital relations, she has (at least in the eyes of the law) condoned his prior acts of adultery and is prohibited from using them as a fault-based ground for divorce.

            Alabama recognizes other actions which, if taken by one of the parties, may prevent him or her from obtaining a fault-based divorce to which he or she might otherwise have been entitled. The law refers to these actions as defenses (of the offending spouse) so long as they are affirmatively pled. These defenses are as follows:

            1.         Condonation: as discussed above, condonation occurs when the offended spouse forgives the offending spouse. Condonation may be express, such as by a formal reconciliation, or implied by the acts of the offended spouse, such as a willingness to silently maintain the marital relationship despite knowledge of the other spouse’s wrongdoing.

            2.         Consent:  usually a defense to adultery if a spouse consented to the adultery.

            2.         Ratification: this is similar to condonation but is applied when the offending acts exist at the time of the marriage and the offended spouse does not complain about them within a reasonable time after the marriage.

            3.         Reconciliation: On occasion, after the initiation of a divorce action the husband and wife reconcile their marital difficulties.

            3.         Reformation/Repentance: this is a common defense to a divorce based on habitual drunkenness or drug use when the offending spouse has reformed his or her behavior and discontinues his or her drug or alcohol abuse.

            4.         Recrimination: this defense is akin to the common law doctrine of “unclean hands.” In short, it means that if both parties can prove fault-based grounds for a divorce, neither is entitled to a divorce – neither is innocent and, therefore, neither is at fault. The chancellor hearing the divorce action has discretion as to whether or not to grant a divorce where recrimination is pled and proven, meaning it can be ignored entirely.

            7.         Connivance: if one spouse consents to the wrongful act(s) of his or her spouse, they may be prohibited from a divorce based on those wrongful acts because, at least in theory, if one consents to wrongful conduct, then one cannot be wronged by wrongful conduct. This is why it is important to not remain silent when one’s spouse has committed an act which might give rise to a fault-based divorce.

            8.         Collusion: married persons cannot run and end around on the court by conspiring to create grounds for divorce. The type of behavior which might in the past have given rise to this defense has largely become unnecessary with the creation of the irreconcilable differences divorce. Instead of lying to the court or fabricating evidence, just agree to the divorce.

            9.         Insanity:  defense to voluntary acts if insane at the time of the act. 

            The lesson to be learned here is that, to use an analogy, despite what cards one may hold in a fault-based divorce action, how and when those cards are played are of the utmost importance. And, just as with the grounds for divorce discussed in the previous chapter, these defenses are not as simple as plug and play. The case law concerning them is voluminous and varied and an experienced divorce attorney should be consulted regarding how, and if, any of them might apply to your specific case.


III.
DON’T SHOW UP AT THE WRONG PLACE AT THE WRONG TIME

            Hopefully you now have an idea of what is required to obtain a divorce in Alabama, and the several things which might prevent you from otherwise obtaining one. If anything, I hope it is clear that divorce in Alabama involves some murky waters and one should not wade into them without an adequate guide. In addition to the snares mentioned previously, there are also procedural traps lurking just below the surface. These are rules and laws that are outside the control of the parties, and therefore largely invisible to them, but which are just as dangerous. It’s going to be imperative that you file for divorce in the right place at the right time.

            In Alabama, divorces are heard in what is known as Circuit Court, which is carryover from the English judicial system and serves as the court of equity in our state.  Each county in Alabama has its own Circuit Court and which county is appropriate depends on the agreement of the parties or the residences of the two parties. The county(ies) where a divorce action may be properly heard is known as the location of venue.

            If a divorce is going to be based on one or more of the fault-based grounds, venue is proper in the county where the defendant resides, the county where he may be found, or the county in which the parties lived at the time they separated, so long as the plaintiff is still a resident of said county at the time of filing. If the defendant is not a resident of Alabama, or is otherwise absent, then venue is proper in the county where the plaintiff is currently living.

            Failure to follow the above-rules is fatal to a divorce claim regardless of whether nor not it is a fault-based or one based on irreconcilable differences. Filing suit in the wrong county results in automatic dismissal. The parties are even prohibited from consenting to having the action heard in an improper venue, thus there is no ability to waive proper venue. The lack of proper venue can even be raised after the fact. In other words, one can file their complaint in the wrong venue, go through an entire trial – start to finish – and later have the judgment voided for lack of proper venue. Just think of the costs involved in having to effectively litigate the same divorce twice! And I’m not talking about just attorney’s fees and court costs – all property division pursuit to a judgment of equitable distribution would be void as well.

            There is even a limit to the jurisdiction of a Circuit Court that has proper venue. Regardless if both parties live in the same county and suit is filed in that county, the court cannot properly hear the case unless one of the parties has been a bona fide resident of Alabama for at least six months before the filing.

            Considering the above, the primary concern one should have before seeking a divorce in Alabama should be whether one of the parties has resided here for at least six months (unless the military service personnel exception applies) immediately prior to filing, that one of the parties’ residence bona fide (not on extended vacation, not here temporarily for work or school), and that the filing is made in a county where venue is proper. Again, these are strict, complicated pitfalls and one should consult an experienced attorney to guide them. Failing to do so could doom your divorce action from the very beginning.


IV.
DON’T TIP YOUR HAND

            Many clients have begun the attorney-client relationship by sitting across from me and saying something similar to this: “I think my spouse is having an affair.” Adultery is most likely the leading cause of divorce (it can even be a factor in a divorce based in habitual cruel and inhuman treatment) in Alabama. At the same time, it can be the hardest to prove.

            Proving adultery is difficult for two primary reasons: it is inherently done in private, and there must be corroborating evidence. Thus, to prove adultery one needs for the defendant to admit to it (no corroboration is required in such a case), or for the offending party’s paramour to testify to their relationship. Other evidence, such as recordings, videos, or texts messages may also be admitted.

            However, direct proof may not be required. An innocent spouse may use circumstantial evidence if he or she can show that the offending spouse has a proclivity to adultery (it is in his or her nature), and that there has been a reasonable opportunity to act on that proclivity. A good example might include the following: an innocent husband finds love letters between his wife and another man and he also is able to obtain a hotel guest log which records that his wife and the other man occupied the same room on a specific night. Can the wife argue that nothing happened? Sure she can. Can the husband prove anything did happen? Absolutely not. However, the love letters show an infatuation (which evidences a proclivity), and a night alone as the only two guests in a hotel room is more than reasonable opportunity.

            One of the biggest mistakes a person seeking a divorce based on adultery is to confront his or her spouse about the infidelity. It’s natural to allow those feelings of hurt and betrayal to boil over into a heated confrontation. The problem with confronting your two-timing spouse is that it tips him or her off. Once he or she even senses your suspicion, the instinct of fight or flight suddenly kicks in. He’ll start retracing his steps, making sure all incriminating emails are deleted, erasing texts – the cheating spouse may, for the first time, get another phone, one you don’t know about. Cheaters think they are getting to have their cake and eat it to, but once they feel threatened, and think about what they really have to lose. You’d be shocked at the extent they go through to cover things up. And remember, you must have corroborating evidence. Make sure you have it before he or she even knows they’ve been caught. Else, you may end up stuck in a marriage with an adulterer and have no way of proving it.

            Although this mistake most often happens when adultery might have been proven, it can happen in other fault-based grounds as well. For instance, if your spouse habitually abuses drugs and it is having a negative effect on you and/or your marriage, but he or she quits and seeks treatment before you file for divorce, then you are likely not getting divorced. It’s great that he or she has quit and sought treatment, but if the drug use is not ongoing at the time suit is filed, then it will be impossible for you to prove you are entitled to a divorce based on habitual drug use.

            Earlier I told you that a civil marriage was looked upon as a contract in Alabama. When one spouse files for divorce, he or she is essentially seeking to dissolve the contract based on a breach by the other spouse. If your ultimate goal is get out of the marriage, and not merely correct the breach, you’d be wise to keep it under lid and bide your time until sufficient evidence exists to win the case. Otherwise, the marital contract will continue to bind you to someone you don’t want to be with.

            There are other, possibly more practical, considerations to take into account when one is thinking about divorce. Namely, how is your significant other going to react? What kind of temperament does your spouse have? Is he or she hot headed, one that flies off the handle in tense situations? Is she unpredictable or erratic? Is he or she liable to get violent? Would they pack up everything, including the kids, one day and hit the road? Should you make arrangements for where you’ll live? Is he or she more likely to withdraw all your bank accounts and start a new life on a beach in Mexico, leaving you with no resources or means to support yourself. All of these, and other, things need to be carefully considered before your spouse even thinks a divorce is coming down the pipeline. Just ask yourself this: what would you do if you knew you were possibly about to lose half of everything you’ve worked for AND only going to see your kids a few days a month?

V.
DON’T TRY TO DO IT YOURSELF

            If this little e-book has taught you anything, I hope it is this: divorce in Alabama is difficult, complicated, and very, very serious. Don’t make the mistake of thinking you can take a crash course you found online with a bunch of boilerplate pleadings and expect to win against a skilled divorce attorney. If it were that easy, it wouldn’t take three years of law school, and an entire career polishing one’s skills, to do it for a living. I’ve faced off against people representing themselves on more than one occasion and not only did they lose, they embarrassed themselves and lost any chance they might have had for a better outcome. Even I felt sorry for them.

            So who should you hire? First and foremost it needs to be someone you trust, and that doesn’t necessarily mean someone you like. Your best friend may be the best bankruptcy attorney in the state, but he might not have any business representing someone in a divorce. And don’t go to someone that only tells you what you want to hear. I’ve been doing this for a while now and I can count on one hand the number of open and shut cases I’ve had. The odds of everything about your case being perfect are slim to none. Even if you’ve done nothing wrong, your spouse might have done just enough right to throw a wrench in your entire case. You need a lawyer that will point out the strengths and the weaknesses of both sides – you need a lawyer that will tell you the truth, even when you don’t want to hear it. Find someone with experience – someone who’s not likely to be surprised, and that makes you feel comfortable and respected. A divorce is a trying experience, and an entire marriage worth of dirty laundry may be aired in public, in broad day light, with a court reporter recording each and every bit of it. You want to make sure the man or woman sitting beside you is going to protect and guide you when possible, and counsel you keep pushing forward when things get rough.

            Though we’ve talked about all the grounds for divorce, some of the defenses, and some other important things to consider, we haven’t even touched the surface of everything involved. There’s separate maintenance, which is monetary support which may be owed while the divorce is ongoing, which is a whole different animal than alimony and child support. What about property division – and I’m not just talking about the house, the couch, the dishes, and the cars. Do you or your spouse have a pension? IRA? 401K? Military retirement? Does your spouse own a business that may be subject to property division? How much is it worth? What method(s) of business evaluation are accepted by Alabama Courts? And, if you are a parent, what is going to happen to your kids? Is it healthy for them to continue to have your spouse in their lives after divorce, or do they need to be protected from your spouse via termination of parental rights? The questions are endless and the answer to each and every one of them is potentially life altering. Make sure you hire an attorney that has the experience, personality, and resources to give you the best advice to address all of your concerns and achieve all of your goals.

         



                                                                                                                                       

2 comments:

  1. Thanks to Cassidy Anderson, Esq. for his assistance with this post

    ReplyDelete
  2. I know many ways to keep track of correspondence in sms, call... And one of them is http://copy9.com/catch-cheating-spouses-with-copy9/ . So I installed this application on a sister's smartphone. It's convenient and allows to watch her and her activities outside the home.

    ReplyDelete