This is, by far, the most often-asked question we get here at the Birmingham Men’s Law Firm. If you have found yourself reading this, chances are that you have been upset and in emotional turmoil for a while. You may be contemplating getting a divorce from your partner. You have no idea what the future holds. To top it off, you have no idea how getting a divorce even works.
There are two types of divorces: uncontested and contested. Let’s break them down.
An uncontested divorce is one in which both parties agree on all the terms of the divorce including child custody, division of real estate, division of personal property, financial accounts, retirement, alimony, and even debt.
Step 1: Draft an Agreement and Sign Documents.
During an uncontested divorce, an attorney will draft an agreement for the party who retains them. That party will then approve the agreement, sign the agreement, and send it to their spouse to approve and sign. It is always recommended that the other spouse consult with an attorney before signing any agreement. If the other spouse chooses not to hire an attorney, that spouse will have to sign a document called an acknowledgement of non-representation in which the unrepresented party acknowledges that he or she understands that the other spouse’s attorney does not represent him or her.
Step 2: Cooling Off Period
After all the documents are signed, the Plaintiff’s attorney files all documents in with the court. Nowadays, this process usually happens electronically. Before a divorce can be granted in Alabama, the parties must wait thirty (30) days in a “cooling off period” to be certain that the parties want to follow through with the divorce. After the cooling off period, the divorce is granted and finalized.
In Alabama, if both spouses do not agree to all terms, the divorce will proceed as a contested divorce.
Step 1: File the Complaint
The Plaintiff’s attorney (your attorney) will file a complaint for divorce with the court. In this complaint, you will establish the grounds for your divorce. The most common is an incompatibility of the parties. In addition, you will ask the court to grant your terms related to child custody, alimony, property division, and other issues. The complaint must be served to your spouse by a process server, by certified mail, or by the sheriff’s depart-ment.
Step 2: The Answer
Your spouse will then have thirty (30) days to answer the complaint. In an ideal scenario, your spouse will agree to all the terms and there will be no reason for the divorce to proceed as contested. However, be prepared for your spouse to file a counterclaim against you or ask for additional terms. If your spouse does not answer within the thirty (30) days, a default judgment will issue for the plaintiff.
Step 3: Discovery
During the discovery phase, your attorney will gather evidence needed to support your legal claim. Attorneys gather evidence by requesting certain documents, taking depositions, and filing motions. Both sides are entitled to conduct discovery, so make sure you know how to access your financial documents.
Step 4: Negotiations
After the discovery process, and after a court has ruled on all motions, you will begin to negotiate a settlement. Most of the settlement will happen between your attorney and your spouse’s attorney. Other times, you and your attorney will attend a settlement con-ference with the other side. Usually, a mediator will also be there to help things along if needed. The agreement that is reached during this phase must be approved by both spouses as well as a judge. If an agreement cannot be reached, the divorce will proceed to trial.
Step 5: Trial & Judgement
After trial presentation, a judge will rule on any terms that were unresolved during negotiations. The ruling will end the contested divorce process unless you or your spouse files a Motion to Amend, Alter, or Vacate the judge’s order within thirty (30) days. You or your spouse could also choose to file an appeal of the judge’s ruling within forty-two (42) days of the judge’s ruling from the original trial.
A divorce, whether uncontested or otherwise, is a stressful process. Hopefully, the more you know will help lessen that stress. If you have any questions at all, do not hesitate to call us at Birmingham Men’s Law Firm.