Is Alabama a No-Fault Divorce State?

Every now and then one of my clients says something like “Alabama is a no-fault state, isn’t it?” I always reply, “it depends.” It depends on what you mean when you ask the question. If you’re asking whether Alabama requires that a person prove fault to obtain a divorce, the answer is no. Ala. Code § 30-2-1 states the permissible grounds for divorce. In amongst the “traditional” grounds like adultery, abandonment, violence, and imprisonment lie the dual grounds of incompatible temperament and irretrievable breakdown of the marriage. Courts accept the testimony of either party that incompatibility exists, so there’s no longer a requirement that either party prove that either party is “at fault” to obtain a divorce.

The corollary to this principle, of course, is that neither party can stop a divorce from occurring. They can slow it down, they can make it more unpleasant, and they can make it more expensive, but a spouse who’s determined to divorce can make it happen even if his or her spouse is fighting the divorce every step of the way.

However, if what you’re asking whether a judge will pay attention to fault in deciding how to determine property division or issues of spousal support, Alabama is most certainly not a no-fault state. Fault still matters. In those rare cases where the judge decides that one party is “at fault” and the other is innocent, the judge has the power to allocate property division in favor of the innocent party. Ditto with support.

So in a divorce that would “normally” result in modest alimony to be paid by the husband to the wife, if the judge determines that the divorce occurred because the wife had an adulterous affair, the judge could decide that it’s appropriate to award no alimony.

And if a judge would in an equivalent-fault divorce grant the house to the husband and the retirement plan to the wife, a judge might change that and do it differently if the husband had been violent with the wife. Perhaps the judge might give the retirement plan to the wife and then order that the house be sold and the proceeds divided equally.

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