Causes of Action for Divorce

The grounds for divorce upon which a cause of action would lie are defined in Alabama by statute.  §30-2-1 Ala. Code (1975).  There are twelve statutory grounds and they are set forth and discussed below:

1. At the time of the marriage, the other party was physically and incurably incapacitated from entering into the marriage state.  This ground is infrequently used, based upon my research.  The physical incapacity meant by this sections is impotency or the inability to consummate the marriage.

2. Adultery.  This is one of the more common fault grounds used in divorce.  There are some aspects however, that are easily overlooked.  Technically, adultery is not just one illicit sexual liaison.  It requires that there was at least the plan to do it again.  Proof of adultery is very difficult without an admission or actual photographic or video evidence of the sexual act.  Adultery is most commonly proved by circumstantial evidence.  Usually, there must be a lot of evidence pointing to adultery.  The type evidence used can be correspondence and testimony of suspect rendezvous between the bad actors.  I find that email is more and more common in this area, as are nude or suggestive photographs transmitted electronically between the paramours.

3. Voluntary abandonment for one year next preceding the filing of the complaint.  Many clients come into my office claiming that their spouse has abandoned them.  Most don't understand, to begin with, that here must be at least a one year period of abandonment immediately preceding the filing of the complaint for divorce.  Moving to a separate bedroom is not abandonment, nor is merely withholding sex.  If the spouse is gone for a year and a half, but returns before the filing of the complaint, there is no technical abandonment.  The evidence of absence and lack of support can and should be used as evidence in the case, but "abandonment" as a ground for divorce in that case will not lie.

4. Imprisonment in the penitentiary of this or any other state for two years, the sentence being for seven years or longer.  This one is self-explanatory.  There are no tricks to it.  However, some people seem to believe that their marriage is automatically terminated when the spouse is imprisoned for a long period.  This is a ground for divorce, not an automatic terminating event.

5. The commission of a crime against nature, whether with mankind or beast, either before or after marriage.  This includes, homosexual acts, bestiality, and heterosexual activities such as sodomy, buggery, cunnilingus, and other "unnatural" activities.  It includes such heterosexual activities between married people, although it would be difficult to argue that only one party is guilty, when both willingly participated.

6. After marriage, becoming addicted to habitual drunkenness or to habitual use of opium, morphine, cocaine or other like drug.  To me, a key consideration here is whether the habitual behavior began prior to the marriage.  If the other party became drunk from time to time prior to the marriage or admitted illegal drug use prior to the marriage, but did not have a habitual drinking or drug problem prior to the marriage, the other party could claim this ground.  However, if the other party was an alcoholic or drug addict prior to the marriage, it cannot be claimed as a ground.  Another important consideration is whether the activity is habitual.  If the other party gets drunk from time to time during the marriage, but they are usually sober, this probably cannot be claimed as a ground for divorce.

7. Upon application from either party, the court is satisfied from all the testimony in the case that there exists such a complete incompatibility of temperament that the parties can no longer live together.  This ground involves conflicts in personality and disposition.  It is not a fault ground, although testimony or evidence concerning fault could tend to prove the existence of this ground.  The conflict must be so great that it interferes with and makes it impossible for the continuance of the marital relationship.

8. When the other, after marriage, has been confined in a mental hospital for a period of five successive years, if such party from whom a divorce is sought is hopelessly and incurably insane at the time of the filing of the complaint.  This ground is self-explanatory.

9. Upon application from either party, when the court finds there has been an irretrievable breakdown of the marriage and that further attempts at reconciliation are impractical or futile and not in the best interests of the parties or family.  This ground is interchangeable with the ground of incompatibility.

10. In favor of the husband, when the wife was pregnant at the time of marriage without his knowledge or agency.  This ground is self-explanatory.

11. In favor of either party when the other has committed actual violence on his or her person, attended with danger to life or health, or when from his or her conduct there is reasonable apprehension of such violence.  This ground requires proof of actual violence, or threats inducing reasonable apprehension of violence of a severity attended with danger to life or health.  Examples of what would be sufficient are threatening to beat pregnant wife, brandishing a butcher knife, threatening to kill while pulling a pistol, choking, striking, and hair pulling, and conviction of assault and battery.  Examples of what has not been held to be sufficient are unkindness, thoughtlessness, statements or gestures meant to hurt feelings, insulting and degrading language, slapping, and even spanking a spouse under certain circumstances.

12. In favor of the wife when the wife has lived, or shall have lived separate and apart from the bed and board of the husband for two years and without support from him for two years next preceding the filing of the complaint, and she has bona fide resided in this state during said period.  This ground is similar to abandonment, but requires no overt act or fault on the part of either party.  The parties must live in separate abodes, not just different rooms in the same residence.  Mere refusal of sexual activity is insufficient as well.  The Wife cannot receive any support.  Property exchanges might not count as support.