1 Flashcards
What does Hattaway v. Coulter (2021) say?
Engagement ring is a conditional gift, conditional on the marriage.
What is the result of a marriage where one party lacks capacity?
Lack of capacity creates a voidable marriage.
What is the minimum age for capacity to marry?
A person must be at least 16 years of age to marry. If a person is less than 18, but at least 16, a parent’s consent is generally required.
What is the procedure for a valid marriage in Alabama?
Execution of affidavits to age and unmarried, recorded within 30 days of execution.
Where a party is currently married and attempts to marry another, what is the result?
The second marriage is void. Annulment is the proper remedy.
Where is the proper place to file for divorce?
Divorce can be filed in the defendant’s county (circuit), or the county where parties resided at separation. If the defendant is a non-resident, divorce can be filed in the county of the other party.
Note- Venue may be waived by both parties, as long as AL courts have jurisdiction
How long after divorce until a party can remarry?
Under 30-2-10, parties can not remarry for 6 months following divorce, unless to each other.
What creates jurisdiction over divorces in Alabama?
The plaintiff must live in the state, otherwise there is no personal jurisdiction. If the defendant is a non-resident, the plaintiff must have resided in Alabama 6 months prior.
What makes “residency” for jurisdiction?
Domicile is residency; 1) physical presence in chosen place of residence AND 2) accompanying intent to remain permanently or indefinitely.
Who can issue a summons for a divorce complaint?
Only the clerk of the circuit court may issue a summons.
What is the time limit to serve the defendant?
Service should be made within 120 days. If not, the court generally gives 14 days notice.
What makes service proper?
Service must be within Ala. R. Civ. P. 4(c)(1). Service can be by certified mail or publication under certain circumstances.
What circumstances allow for service by publication?
Service by publication is allowed when the identity or residence is unknown, or a resident defendant has been absent more than 30 days, AND
the defendant avoids service.
Service by publication requires affidavit to the above.
What are the no fault grounds for divorce?
Incompatibility of Temperament
AND
Irretrievable Breakdown
What are the at fault grounds for divorce?
Incurably incapacitated; Adultery; Voluntary abandonment; Imprisonment; Crimes against nature; Habitual drunkenness; Mental confinement; Existing pregnancy; Violence; Lived apart and separate.
How is adultery proven?
Adultery can be proven by circumstantial evidence, when it leads the guarded discretion of a reasonable person to the conclusion of adultery.
When can adultery occur?
Recent AL decision is that adultery even after the filing of divorce proceedings is ground for at fault judgment.
What constitutes voluntary abandonment?
A voluntary and intentional abandonment for 1 year prior. The occasional night’s stay does not negate voluntary abandonment.
When is imprisonment a ground for divorce?
Imprisonment for 2 or more years in the penitentiary, and the sentence is 7 or more years total.
What is required for habitual drunkenness grounds?
The drunkenness must have begun after the marriage. Pre-existing drunkenness removes the fault.
What must be filed or testified to for incompatibility of temperament?
An affidavit that satisfies the court of deep conflicts and impossible to continue a normal marriage.
What is Judge Williams’s incompatibility song?
We Just Disagree by Dave Mason
What must be shown for divorce due to confinement to mental institution?
Five successive years confinement and adjudged incurably insane.
When further attempts at reconciliation are futile, what divorce ground is being considered?
Irretrievable breakdown. Generally some event precipitated the breakdown and the marriage is no longer in the best interest of the parties or the family.
What is Judge Williams’s irretrievable song?
Sorry Seems to be the Hardest Word by Elton John
When is pregnancy at the time of marriage a ground for divorce?
When the wife is pregnant at the time of marriage and the husband has no knowledge and is not the father.
How is maternity established?
The mother is legally established by:
Giving birth,
Adjudication,
Adoption.
How is paternity established?
The father is legally established by an unrebutted presumption, when:
Birth within 300 days of marriage or apparent marriage;
Married mother after the birth and filed with court or vital stats, consensual on birth certificate, receives in home and holds out as own, court order;
Adjudication;
Adoption;
Legitimated.
What is the preferred term for visitation?
Per Judge Williams, “parenting time” is to be used instead of visitation.
When both parents have equal rights and responsibilities for major decisions…
Joint legal custody.