For the last couple of days, we’ve been covering the issue of venue for divorce and domestic cases in Alabama. The legal term for this is “venue.” Thursday’s post covered the question of which county to use for an adversarial divorce filing, and Friday’s post described the choice of county for a post-divorce case. Today’s post covers the issue of where couples may choose to file an uncontested divorce in Alabama.
By now, if you’ve already read the two prior posts, you probably already know the answer to this question, but it comes up often enough in my practice that I felt it necessary to spell out the pleasant truth for people filing uncontested divorce in Alabama: you can file in any county you wish.
If you know my practice well, you know I file all my uncontested divorces in Talladega County. I do this because Talladega County is a model of simplicity and efficiency, where there is a refreshing consistency about the competent handling of divorce cases. I wish I had a nickel for every case where I have prepared the documents for an uncontested divorce, where the spouse who is not my client has asked another lawyer to review them, and where that lawyer has solemnly informed his or her client that what I propose to do is illegal. No, it’s not. It’s just fine for people to choose the county in which they file uncontested divorce, even if neither the husband nor the wife resides in that county.
How can I say that? As we’ve already discussed, Ala Code § 30-2-4 is specific about where divorce can be filed, and it says nothing about couples choosing a county where neither of them lives and where they did not live while they lived together. How can they file in a county not permitted by § 30-2-4? The answer is simple, and it flows from the simple principle that venue can be waived. Ex parte AAMCO Transmissions, Inc., 897 So. 2d 285 (Ala. 2004).
If the plaintiff files for divorce in a county not permitted by Ala Code § 30-2-4, the defendant can object to that county and file to remove it to one permitted by the statute. But if the defendant simply answers the complaint, the case can proceed in the county where the plaintiff filed. No objection, no problem with venue.
If you can live with the monotony, let’s return to poor John and Mary. If you’ve read the earlier venue posts, by now they have become old friends. John and Mary lived together in Shelby County. When they split up, John moved to Escambia County and Mary to Jefferson County (with their child). Let’s say that John and Mary file their uncontested divorce in Talladega County, and now a few years later, it’s time to change child support.
One of the pleasant little secrets of life in my world is that John and Mary, once having tasted the elixer of cooperative divorce, are remarkably UNLIKELY to fight about things like child support later. In all likelihood, John and Mary, being either too smart, too poor, or both, to spend a lot of money changing their child support, will simply talk over the necessary change and agree to sign a Joint Petition to Modify.
But let’s assume they’re one of those rare divorced couples who cannot do this cooperatively. Mary is aware that John’s income has increased, but he won’t tell her how much and won’t agree to pay Mary more child support. Mary needs to file a petition to modify her child support. Where can she file?
Under Ala Code § 30-3-5, Mary can choose to file in Talladega County (the county where the original decree was issued), or in Jefferson County (the county where she and the child now live). She cannot file in Shelby County or Escambia County, because neither of these counties is on the permissable list. Or more precisely, she can file in either of those counties (or for that matter in any of Alabama’s 67 counties), but if she files in any county other than Talladega or Jefferson, John can force removal.
What if John is the one who files? He can file in any county he wishes, but after he does, Mary can force removal to her choice of Talladega County or Jefferson County.
Now back to that nickel. The objection uninformed lawyers often raise with their clients about filing in Talladega County is that their clients will be “stuck in Talladega County” if anything ever needs to be modified.
First, I’ve seen the way Judge Sims and his staff deal with issues like this in Talladega County, and I wouldn’t be at all afraid to litigate before him. Second, as we’ve described above, there are indeed some circumstances in which a noncustodial parent (NCP) would be “stuck” in Talladega County to litigate post-divorce issues, but that NCP would be no more stuck in Talladega County than they would be stuck in whatever county they chose to file the uncontested divorce.
And of course, for a custodial parent who has lived in the same county for three consecutive years, there’s simply no issue. The custodial parent can choose to move the case to the county where that parent lives. They’re not stuck in Talladega County at all.