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Birmingham Bar Association - Bulletin Fall 2017

Family LAw G. R. Fernambucq and Joseph P. Callaway Statutory Changes Affecting Alimony & Property Division Two important statutory changes aff ecting property division and alimony awards in domestic relations cases become eff ective on January 1, 2018. Th e fi rst signifi cant statutory change is an amendment to the property division statute codifi ed in Ala. Code §30-2-51. Th e revision impacts a trial court’s ability to equitably divide divorcing spouses’ retirement benefi ts pursuant to Ala. Code § 30-2-51. At fi rst glance, the most noticeable change is that the legislature has removed the requirement that the parties be married for a period of ten years before allowing the equitable division of retirement benefi ts. As a result, the courts may divide retirement benefi ts accrued during shorter-term marriages. Th e burden of proof regarding the exclusion of benefi ts that accrued prior to the marriage has also been shifted. Rather than requiring a party seeking an award of retirement benefi ts to prove what benefi ts accrued during the marriage, the amended statute will require the party seeking exclusion of the retirement benefi ts to bear the burden of proving what retirement benefi ts accrued before the marriage. Th e court also is no longer required to consider the present value of the retirement benefi ts but rather “may use any method of valuing, dividing, and distributing an interest in retirement benefi ts that is equitable under the circumstances of the case so long as the overall division and distribution of the marital property remains equitable to the parties.” Despite these changes, the legislature retained the prohibition from awarding more than fi fty percent of the retirement benefi ts payable to the non-covered spouse. Th e second signifi cant enactment is a new alimony law, Public Act 2017-164, aff ecting cases fi led on or after January 1, 2018. Divided into three substantive parts, the new law aff ects both awards of interim alimony and awards of rehabilitative or periodic alimony. Th e fi rst section of Public Act 2017-164 provides that a court may award interim alimony in an action for divorce or legal separa- tion when 1) the spouse maintains the validity of the marriage, 2) the spouse needs interim alimony, taking into consideration any other fi nancial contributions provided the other spouse pursuant to other interim orders of the court, and 3) the other spouse has the ability to pay interim alimony. Th e law allows the court to award interim alimony retroactively to the date of the fi ling of the complaint, and provides that the amount awarded is to be based on a number of equitable factors that the court must consider in awarding rehabilitative or periodic alimony. Th e Act also provides that “the court may award out of the marital property or current income reasonable interim fees, costs, and litigation expenses, including discovery, expert witnesses, guardians ad litem, special 20 Birmingham Bar Association


Birmingham Bar Association - Bulletin Fall 2017
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