The Difficulty of Claiming Abandonment as Divorce Grounds in Alabama
By Beverly Bird
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In any state that recognizes abandonment as a divorce ground, the biggest impediment to using it is that your spouse must have left you to fend for yourself financially and emotionally before it applies. You must wait out a lengthy period before you can file for divorce, and, by definition, your spouse must be absent during all that time. This can make ending your marriage a long, drawn-out process. However, in Alabama, it may be worth it. The state’s legislative code addresses marital fault, and particularly abandonment, regarding issues of custody, alimony and property division.
Alabama has two abandonment grounds for divorce: one is fault-based and the other is no-fault. The no-fault ground requires that the abandonment must be voluntary. This means you consented to your spouse leaving. If you do this, you only have to wait a year before filing for divorce. However, your spouse’s desertion will have no effect on property distribution or potential spousal support you might receive, because you agreed that he could leave and no marital fault is being alleged. Alabama’s statutes require that your spouse abandon you from “bed and board" to use this ground. “Bed” means that he is physically absent; “board” means that he is not supporting you financially during this time.
If you use Alabama’s fault ground for abandonment, it can affect a judge’s decisions regarding both property distribution and spousal support. According to Alabama law, the court can consider marital misconduct when dividing property between spouses and when ordering alimony. When a wife is the one who abandons a marriage and a husband uses this ground, it will also affect custody; if the children are older than seven years of age, the court will automatically place them with their father. However, this ground requires that the spouse filing make it on his own, without his spouse’s financial assistance, for two years before he can file for divorce.
If you’re struggling to make ends meet, waiting one year to file on the no-fault abandonment ground or two years to file on the fault abandonment ground can be an eternity. This is especially true if you have children to support. You cannot file for temporary alimony to hold you over while your divorce is pending, or for a child support order, until your divorce is officially underway. You must first file a complaint for divorce.
If your situation is such that you cannot make it a year until you can file on a no-fault abandonment ground or two years until you can file on a fault abandonment ground without financial assistance from your spouse, Alabama law gives you another option. The state recognizes legal separation. You can file for legal separation as soon as your spouse leaves you. The grounds for legal separation are much less strict than those for divorce. Either you or your spouse must wish to live separately. If your spouse has left you, it’s a clear indication that he wants to live separate from you. You can, therefore, file a suit for legal separation and the court can order alimony, child support and even property division as part of that lawsuit. At the end of two years, you can file for divorce on the fault ground of abandonment, and the court will make more final decisions regarding property and financial issues. However, this option essentially involves filing two separate legal proceedings: one for separation and one for divorce.
Beverly Bird has been writing professionally since 1983. She is the author of several novels including the bestselling "Comes the Rain" and "With Every Breath." Bird also has extensive experience as a paralegal, primarily in the areas of divorce and family law, bankruptcy and estate law. She covers many legal topics in her articles.