Whether you filed your taxes jointly or not during your marriage, divorce in Alabama can have numerous tax-related consequences and considerations. Here are some of the tax issues you’ll need to consider:
 
Filing Status
 
One of the first tax-related questions that come up during a divorce is whether the couple can or should file their taxes jointly the next time they file. When determining your filing status the IRS looks at the last day of the year. If you are married on December 31 you may choose to file jointly. If you are divorced by December 31 you cannot file jointly even if you were married the rest of the year. If you are employed, remember to update your W2 to reflect any changes to your exemptions. Don’t forget to account for your children if you will no longer be claiming them for tax purposes.
 
Issues Related to Claiming Dependents
 
If you and your spouse have a child(ren) together, you will have to decide which of you will claim the dependency exemption for your child(ren) when filing your income taxes. While the default assumption is that the parent that has physical custody the majority of the year will claim the child, the IRS allows divorced parents to mutually agree who will claim the children for tax purposes. In some cases parents might choose to rotate years or each claim a different child, depending on the agreement or judge’s ruling. If you are planning to claim a child who lives with you less than half the year, get a signed IRS Form 8332 to clarify and formally put the IRS on notice of your agreement.
 
Issues Related to Alimony
 
Alimony is tax deductible for the person ordered to pay the alimony, and it must be claimed as income for tax purposes by the person who receives it.
 
Child Support Tax Consequences
 
Unlike alimony, child support is NOT tax deductible. The person paying support is not entitled to deduct the amount paid from his taxable income, and the parent receiving child support is not required to claim the payments as taxable income.
 
Capital Gains Taxes Related to the Sale of the Marital Home
 
The IRS allows individuals to exclude up to $250,000 ($500,000 for married couples) of gains related to the sale of their primary residence. To qualify, the house must be your primary residence and you must live in and maintain ownership for at least 2 of the 5 years preceding the sale. 

Cohabitation has become extremely common in Alabama as well as all across the country, with up to half of all couples living together without being married. Among these, approximately half end up marrying within the next few years. Others eventually break up, choose to live separately while maintaining their relationship, or continue living together for years or even decades without ever marrying.

Deciding whether cohabitation is right for you is a very personal choice that should take into account the specific needs and expectations of you and your partner. Whatever your choice, it is very important that couples who are considering living together be aware of their rights.

The first thing you should understand is that cohabitation does not automatically equate to a common-law marriage. Alabama DOES recognize common-law marriages (as long as they occur before January 1, 2017), which provides spouses with the same rights and remedies as any other married couple, but this term implies far more than simply living together. Primarily, couples who wish to form a common-law marriage should clearly communicate their mutual intent to live together as a married couple.

Cohabitation is not a legal term in Alabama and thusly, there are no specific domestic relations laws governing the rights of unmarried couples who choose to live together. Instead, most of the issues involved in living together are resolved through basic contract law, property law and/or landlord-tenant laws. This means that in Alabama, you will often receive treatment similar to business partners in the process of dissolving a business relationship should you turn to the legal system to resolve any issues resulting from a potential separation.

Absent a clear (and usually written) agreement to the contrary, each of you is presumed to own the property and debts that are held in your individual name. Essentially, this means neither party will be required to split their assets with their partner, nor will either share responsibility for debts held in the other party’s name. This issue is especially significant when it comes to larger assets such as real estate.

Some couples choose to purchase a home jointly in order to share responsibility for the debt and protect each party’s interest in the investment, but this is not always practical depending on the financial status of each individual. Often, a partner with a stronger income and work history and higher credit score may purchase a home in his or her name with the intention of sharing that home with his or her unmarried partner. In the event the couple separates, the house will generally remain the sole property of the partner in whose name it was purchased, regardless of who was paying the mortgage.

You should think very carefully before investing significant funds into a property owned by someone to whom you are not married and understand that if circumstances change in your relationship, you may one day find yourself with little or no rights to the property.

Similarly, you should also carefully consider the implications of financing a home or any type of property you cannot afford to pay for on your own. You may have had no trouble fulfilling your financial obligations as long as you rely on your partner to contribute his or her income to the household, but if the relationship doesn’t work out, remember that you will be stuck with any debts you acquired in your own name.

Some couples choose to deal with these issues by preparing a written cohabitation or “living together” agreement which outlines the rights and responsibilities of each party during the relationship and in the event it doesn’t work out. While it may not seem like the most romantic way for a couple to start their journey of living together, an explicit agreement can provide mutual protection and peace of mind and greatly simplify things down the road should the parties decide to separate.

It can also be a valuable tool in practicing your skills in communication and teamwork, as the ability to negotiate and clearly communicate your expectations and desires is one of the most important aspects to success in any relationship. Some couples may choose to create their own written agreement, but it is always a good idea for each partner to consult with an experienced attorney who can advise you of your rights and help you draft a good agreement that meets your needs.

Unmarried couples should also consider what happens in the event either partner dies. Unlike married couples, your surviving partner will not automatically be entitled to a share of your property. In Alabama, the survivor will inherit nothing from the other absent a will or some other type of contract or joint ownership that specifically provides that right.

If you keep your home, bank accounts and other property separate (in your individual names) throughout your relationship, it is very important that you prepare a will if you intend for your partner to receive all or a portion of your property in the event you die before they do. Other options may be available to protect your wishes and you should consult an estate planning attorney who can advise you of the best options for your circumstances.

It’s never fun to think about these sorts of issues during the exciting stages of starting a new life together and establishing a household with a romantic partner. In fact, many couples who choose to cohabitate state that they prefer to avoid all the legal implications of marriage and forge a lifelong partnership based on love and mutual trust, without the contractual obligations.

While this may certainly be viewed as a beautiful and perhaps even noble undertaking, it should be noted that most divorce attorneys routinely receive frantic calls from unmarried individuals who were left out in the cold by a former partner who, during happier times, promised to “take care of them no matter what.” 

UPDATE: The state of Alabama no longer recognizes common la​w marriages that occur after January 1, 2017

When parties with minor children divorce in Alabama, the final divorce decree will specify which party will have physical custody of the minor children, and will also include language describing the non-custodial parent’s child support requirements as well as a visitation schedule outlining the specific times when the non-custodial parent can expect to spend time with their children.

Frequently, judges will use their own preferred visitation schedule, often referred to as a standard visitation schedule. Most visitation schedules are very similar throughout Alabama, but there may be differences depending on the county in which your divorce is filed. Some judges will allow cooperating parties to create their own unique visitation schedule, but others prefer to defer to the standard visitation schedule.

In Mobile County, Alabama, the judges prefer a visitation schedule similar to the language found below:

The non-custodial parent is allowed liberal visitation with the children at any and all reasonable times as are mutually agreeable to the parties including the following specific times:

     Weekend: The non-custodial parent is allowed weekend visitation on alternate weekends from Friday at 6:00 p.m. until Sunday at 6:00 p.m., beginning on the Friday after the Agreement is signed. 

     Thanksgiving: The non-custodial parent shall have alternate Thanksgivings with the minor children in odd-numbered years. The custodial parent shall have alternate Thanksgivings with the minor children in even-number years. The time shall be from 3:00 p.m. on Wednesday until the following Sunday at 6:00 p.m.

     Spring Break: The non-custodial parent shall have Spring Break in even-numbered years and the custodial parent shall have spring break in odd numbered years. The time shall be from Friday immediately before the spring break week begins at 6:00 p.m. until the Sunday after spring break at 6:00 p.m.

     Summer: The non-custodial parent shall be entitled to four weeks of visitation during the summer with the specific schedule to be mutually agreed upon by the parties. If the parties are not able to reach a mutual agreement, the non-custodial parent shall have summer visitation during the month of July beginning at 6:00 p.m. on the first day of July and ending at 6:00 p.m. on the last day of July of each year.

     Christmas: The custodial party shall keep the children in his or her care during the week before Christmas until 3:00 p.m. on Christmas Day. Thereafter, the non-custodial party shall have visitation for one week at Christmas from December 25th at 3:00 p.m. until January 2nd at 3:00 p.m.

     Other: In addition, the children shall be with the mother on Mother's Day weekend and with the father for Father's Day weekend.

This schedule is used in the majority of divorces in Alabama, with some variations occurring depending on the specific county. Note that when holidays interfere with the basic structure of alternating weekends, the holiday schedule will override the schedule of alternating weekends and the basic schedule will continue as normal after the holiday. Neither party is entitled to “make up” a weekend lost due to the holiday schedule.

Also note that this schedule is intended as a minimum visitation schedule, ensuring a minimum amount of time the child(ren) will spend with the non-custodial parent. Parents are encouraged to supplement the schedule as they see fit, allowing the child to spend more time with the non-custodial parent whenever it is mutually agreeable and convenient to both parties.

Additional visits need not be authorized by the Court or included in the formal visitation schedule, but can be decided by the parties through mutual agreement as desired. Please remember that in most cases, it is in the best interests of the children to maintain a close relationship with both parents and spend as much time with the non-custodial parent as possible.

Parents who are cooperating especially well may desire to create their own visitation schedule which fits the unique needs of their family. In many cases, the Court in Mobile County, Alabama will not incorporate the parties’ own schedule into the divorce decree, but the parties are nevertheless free to adhere to their own informal agreement as long as it works for them and they are both agreeable.

In other words, you are not required to follow the Court’s preferred schedule as long as you can make your own schedule work. However, if conflict arises and the parties are not able to agree on an informal schedule, the Court will defer to and enforce the standard visitation schedule included in the divorce decree. 

Common-law marriage is one of the most widely misunderstood topics in family law. Often, couples believe that if they live together for a certain amount of time, they are automatically considered married in the eyes of the law. This is not the case. As of January 2017 the state of Alabama no longer recognizes common law marriages. However, Alabama does recognize common-law marriage occurring before January 2017, although it requires more than simply living together.

The primary test for common-law marriage is the mutual intent of the parties to be married. Prior to the recent change in law, Alabama law did not require a marriage license, ceremony, or the formal exchange of vows in order to create a valid marriage. Marriages which are informally contracted without a license or ceremony are known as common-law marriages.

Up until it was recently outlawed, Alabama was one of only 9 states that authorized common-law marriage, although all 50 states recognize common-law marriages that were contracted in a state that allows it. This means that if you and your spouse formed the intent to be married while living in Mobile, Alabama, as long as you met all the state requirements for common-law marriage in Alabama, your marriage would be recognized nationwide, including states which have never authorized common-law marriage.

The requirements for common-law marriage in Alabama are:

(a). Both parties must have the capacity to marry. This means that the parties must be of the opposite sex, and each party must be mentally competent, of legal age to marry (over 18 or over 14 with parental consent), and not married to someone else.

(b). Present agreement or mutual consent to enter into marriage. In order to create a valid common-law marriage, the parties must actually intend to be married and consider themselves “married,” as distinguished from dating, cohabitating, or engaged. Living together, purchasing property together, raising children together, and sharing household duties and expenses are all very common practices of married couples, but these factors alone are not enough to establish a common-law marriage, no matter how long a couple cohabitates. The law requires that both parties actually considered the relationship a marriage.

(c). Public recognition of the marriage. The parties must hold themselves out as married to family, friends and the community. Introducing each other as “my husband” or “my wife” and using the same last name are examples of a couple holding themselves out as married.

(d). Consummation or Cohabitation. The parties must live together as husband and wife and engage in sexual intercourse. There is no requirement regarding the amount of time a couple lives together. A common-law marriage can be formed the day the couple moves in together provided the other elements are met.

A common-law marriage, once formed, is a valid legal marriage just like any other, with all the same rights and responsibilities. Parties to a common-law marriage may file taxes together, claim each other on health insurance plans, assert inheritance claims, and receive other benefits to which other married couples are entitled.

And like any other marriage, common-law marriage may only be terminated through death or divorce. There is no “common-law divorce,” and couples wishing to dissolve a common-law marriage are subject to the same divorce laws as other married couples, including equitable division of property and debt. 

​UPDATE: The state of Alabama no longer recognizes common la​w marriages that occur after January 1, 2017