A contested divorce is one where both parties do NOT agree on all terms related to the divorce.
Even couples who intend to end their marriage peacefully may end up disagreeing to certain terms once the divorce process begins. In Alabama, that is called a contested divorce.
A complaint will be made by the plaintiff (you) or your attorney naming your spouse and establishing grounds for divorce. This is also where you will ask the court to grant your terms related to property division, alimony, child custody and other issues. The complaint must be delivered to your spouse by the sheriff’s department, a process server or certified mail.
Your spouse has 30 days to respond to the complaint. This allows him or her time to hire a divorce attorney and respond to your claims fully. Ideally, he or she will agree to the terms and there is no need for the divorce to be contested. But be prepared that your spouse’s attorney may file a counterclaim against you or make additional requests in the answer. If the spouse does not respond to the claim, there is usually a default judgment for the plaintiff.
During this phase, attorneys will do the legwork necessary to support your legal position. This could include gathering evidence, obtaining documents, taking depositions and filing motions on your behalf, for example.
After the court has ruled on all motions, you will begin to negotiate a settlement. Generally, judges want you to do this out of court and may request that you and your spouse work with an independent mediator to develop a revised settlement. It must be approved not only by the couple, but by the judge as well, before a divorce can be finalized. If an agreement cannot be reached at this phase, the divorce proceedings will head to trial.
Going to trial means that a judge will rule on any terms that you were unable to resolve during negotiations. This ends the contested divorce process, unless you or your spouse files a Motion to Alter, Amend, or Vacate the judge’s order within thirty (30) days of the judge’s ruling. Either you or your spouse could also choose to file an appeal of the judge’s ruling, which would have to be filed within forty-two (42) days of the judge’s ruling from the original trial or any Motion to Alter, Amend, or Vacate filed timely thereafter.
An uncontested divorce is one where both parties agree on ALL the terms related to the divorce.
We always recommend that even if the divorce in uncontested, both the husband and the wife should consult with separate attorneys prior to signing any agreement for divorce. If one spouse chooses not to hire an attorney, that spouse will have to sign a document as part of the uncontested divorce that acknowledges he or she understands that the other spouse’s attorney does not represent him or her.
Meet with attorney(s) to agree on child custody, child support, division of real estate, division of personal property, cars, and other items, division of bank, retirement, savings account, other financial accounts, alimony, and attorney’s fees and court costs.
Sign all the documents that are necessary to finalize the divorce.
The Plaintiff’s attorney usually files all the documents in with the Court Clerk electronically. Then, Alabama has a thirty (30) day “cooling off period.” That “cooling off period” is basically there to make sure you are certain you want to follow through with the divorce.
If you decide to get back together and no longer want to go forward with the divorce, you and your spouse can ask an attorney to file a motion to dismiss the divorce. However, if you and your spouse do not file a motion to dismiss, your divorce can be final thirty-one (31) days after the case has been filed.
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