Alabama Divorce Via Default
By Elizabeth Rayne, J.D.
Whether you cannot track down your spouse or he is completely unresponsive to your divorce complaint, you may still ask courts in Alabama to grant you a divorce without your spouse's input. A default divorce is granted when one spouse files for divorce but the other spouse does not file any documents with the court and does not show up to the final hearing. However, you must ensure that you properly notified your spouse about the divorce, or he may ask the court to void the default judgment.
Alabama Divorce Process
You may initiate a divorce in Alabama by filing a Complaint for Divorce in the circuit court of the county where either you and your spouse resided at the time of your separation or in the county where your spouse currently lives. The complaint should include the grounds for divorce, a statement that you meet the residency requirements, and the "relief" you are requesting, which may include spousal maintenance, property division, child custody or child support. You must serve the complaint, along with a summons, on your spouse, meaning the paperwork must be delivered by an adult other than yourself. After your spouse receives the paperwork, he has 30 days to respond to the allegations in your complaint.
Service by Publication and Default Divorce
If you are unable to find your spouse to serve him with divorce paperwork, Alabama law allows service by publication, which means you publish notice of the divorce action in a local newspaper to inform your spouse about the divorce. If your spouse does not file a response to the complaint or publication within 30 days, you may ask the court to grant a default divorce. You may file Form PS 10, Request for Divorce Judgment by Default, if you and your spouse do not have children and you are not asking the court to divide assets or debts. However, if you are asking the court to consider property or support issues, or if you have children, you must file a different form along with financial affidavits with the court.
The default divorce will be finalized during a default hearing. During the hearing, the court will determine whether or not you have grounds for divorce, as well as the terms of divorce, which includes property division, child custody and similar issues. You must use your best efforts to notify your spouse of the default proceedings. However, if he does not show up, the court will likely award a default divorce, and will base its decision concerning the terms of the divorce on documents you filed and the testimony you provided.
Setting Aside Default
If your spouse later learns about the default divorce judgment, he may ask the court to set aside the judgment, meaning that the divorce would be void and you would have to essentially start the process over again. Your spouse has 30 days to ask the court to set aside the judgment. The court may reopen the case if your spouse provides evidence that he was not properly notified of the divorce or default hearing. Additionally, the court may set aside the judgment if your spouse proves that neither spouse lived in the county where the complaint was filed.
- Alabama State Bar: Legal Aspects of Divorce
- Children's Rights Council: Alabama Law
- The Harris Firm: Divorce by Default
- Alabama State Bar: Request for Divorce Judgment by Default
- Alabama Rules of Civil Procedure: Default
- Alabama Divorce & Family Law Attorney Blog: Divorce Procedure & Jurisdictional Issues in Montgomery, Alabama
Elizabeth Rayne earned her J.D. from Penn State University and has been practicing law since 2009, advising clients on issues ranging from employment law to nonprofit management. For two years, she served as a contributing editor for the "Vermont Environmental Monitor."