Year: 2012

It’s The Holiday Season

The holidays always reveal many family law issues. From visitation to child support payments to issues regarding travel, Thanksgiving and Christmas are typically very stressful times for many families. A typical divorce order where one parent is designated the primary custodian will usually specify the non-custodial parent’s holiday visitation schedule, but problems still arise.

If the parties can agree, the best course of action is to communicate and work out a holiday visitation schedule that everyone can follow. If one party wants to modify a divorce order or agreement and the other party objects, they will have to petition their local court to modify it. This is time-consuming and expensive, with no guarantee that a judge will modify the order. Another alternative if the parties cannot work something out among themselves is to hire lawyers to facilitate an agreement out of court. Our office has several cases right now where the parties either cannot afford to go to court, or have no desire to, and they have hired lawyers as informal mediators to try and work out an arrangement.

As with any other post-divorce or custody issue, the order or agreement is the blueprint for holiday visitation issues. If you have further questions in this area or need to speak to an attorney, call my office for a free consultation. (205) 988-5570.

Abandonment

Abandonment in divorce cases is one of the most misunderstood aspects of divorce law. It seems that everyone “knows” the laws regarding abandonment in Alabama, and hardly anyone actually does. Hopefully this will clear things up.

Alabama Code 1975, 30-2-1(a)(3) states:

The circuit court has power to divorce persons from the bonds of matrimony, upon a complaint filed by one of the parties, entitled “In re the marriage of _____ and _____,” for the causes following:

(3) For voluntary abandonment from bed and board for one year next preceding the filing of the complaint.

Additionally, a spouse who leaves the marital residence due to physical violence directed toward them is not guilty of voluntary abandonment. (Shelton v. Shelton, 48 Ala. App. 204, 263; So.2d 505, 506 (Civ. App. 1972))

In reality, the proliferation of no-fault divorce laws has essentially made the practice of pleading one of the statutory fault grounds for divorce archaic. If you have further questions on the law regarding abandonment in Alabama, contact my office for a free consultation. (205) 988-5570.

Divorce and Bankruptcy

The marriage, no pun intended, between divorce proceedings and bankruptcy is complicated and can be intimidating. In a nutshell, bankruptcy proceedings go through the federal court system, and essentially trump state-court divorce proceedings. I have a case involving post-divorce contempt proceedings where a Defendant has refused to pay alimony. The Defendant filed a “Suggestion of Bankruptcy” in the divorce court, and therefore “stayed”, or paused, the contempt proceedings. Alimony and child support are not dischargeable in bankruptcy, so this Defendant will not avoid his obligations, but the divorce court proceedings are on hold until the bankruptcy is finalized.

This is how my response read (names removed):

  1. Defendant’s Suggestion of Bankruptcy informs this Court that Defendant filed a petition for relief under Title 11, United States Code, case no. XX-XXXX, which was granted on XXXXX, 2012.
  2. Defendant further asks this Court to stay the Plaintiff’s contempt proceedings, and that said action has been stayed by “11 U.S.C. § 362”.
  3. Section 523 of the Bankruptcy Code does not list alimony or marital support payments as an eligible discharge in bankruptcy, listing two exceptions that do not apply in this case.
  4. Further, 11 U.S.C. §362(b) states,

(b) The filing of a petition under section 301302, or 303 of this title, or of an application under section 5(a)(3) of the Securities Investor Protection Act of 1970, does not operate as a stay—

(1) under subsection (a) of this section, of the commencement or continuation of a criminal action or proceeding against the debtor;

(2) under subsection (a)—

(A) of the commencement or continuation of a civil action or proceeding—

(i) for the establishment of paternity;

(ii) for the establishment or modification of an order for domestic support obligations; (emphasis added)

 

In this case, the state (divorce) court denied my Objection and the bankruptcy proceedings trumped the contempt action. If you have questions regarding divorce, alimony, child support, or contempt actions in Alabama, contact my office today for a free consultation, (205) 988-5570.

The Truth About Family Law

I am borrowing this from the Pincus Family Law firm in South Carolina (http://pincuslawyers.com/). Their “About Us” section is so amazingly brilliant that I had to repost the entire thing.  So much truth here.

 

ABOUT US

We do not work on the weekends and do not provide emergency numbers for the weekends. There are times we may look at and answer your email over the weekend, but this is generally the exception and not to be relied upon by you that we are accessible on weekends.

Do not think we are perfect. We make mistakes. We are competent attorneys and paralegals, but we make mistakes. We will correct a mistake if we find it or if you point it out. Please do not yell at us, accuse us of not doing our job, or insult us over a mistake.

We will return phone calls in the order they are received and based on the priority of the situation. If you leave a message, your message will be passed on to the attorney. Calling three or four or multiple times in a day will not get your call answered any faster. Email is the quickest way to get a response from an attorney since often we can check email when we are out of the office waiting at the Courthouse–where we cannot call you.

Attorneys work by appointments only. Please do not show up at our offices to speak with an attorney without an appointment.

Please use our paralegals to answer your questions if they can and give you status reports. Our paralegals are very experienced and can, most of the time, respond to your request, but they can never give you legal advice. We bill our paralegal time at less than 50% than what the attorneys charge so take advantage of their experience and knowledge.

About Others:

You may not get any consideration from your spouse for anything you have done or will do because you are nice. You are encouraged to be nice, be cooperative, but don’t expect to get anything favorable in return for it and we cannot control your spouse’s behavior.

Most of the research you do about your case online or the advice you get from friends will be incorrect or not applicable to your case so you should not compare what is happening on your case to what you find online or what friends or family may tell you. As your attorneys, we are the only reliable source of information regarding the process and status of your case.

The opposing attorney may be very aggravating and frustrating to you because he or she may accuse you of things you have not done, may be litigious (wanting to fight about everything), may drag his or her feet with moving the case forward, or may be non-responsive to requests from this office. It is unrealistic to expect that we can control how an opposing attorney handles his or her file or practices law.

The legal pleadings (Complaint, Answer, Counterclaim, etc.) are legal documents filled with allegations that must be stated (and some that are merely made to posture for a client). Do not expend any emotional energy (get angry or upset) on the text of legal pleadings drafted on your behalf or your spouse’s behalf. It is not worth it.

We cannot control the court’s schedule or docket. The courts schedule cases as they are processed and in line with the thousands of other cases filed. You will not be happy with the time it takes your case to get through the system. There are thousands of family law cases filed in Lexington and Richland counties each year and most contested cases take several months, sometimes more than one year, to finish.

COURT APPEARANCES

Pincus Family Law generally works files in collaboration with all of the attorneys although one may be your “lead” attorney. Therefore, at court appearances, it may be necessary for one to cover a court appearance for the other. We will try to give you advance notice if your “lead” attorney will not be attending a court appearance, but sometimes the scheduling decision is made at the last minute.

SUBPOENAS

The other party can send a subpoena to any third party that MAY have information about you, your spouse, your business dealings, your employment, your education, your children and the like.

Banks, lenders, business partners, educational facilities, stock brokers, teachers, churches, etc. can all be issued subpoenas for any records they may have regarding you. We can do the same.

There is very little we can do to stop this so be prepared to deal with the frustration you may experience. If there is a legitimate reason to try and stop the subpoena, which there rarely is, we can file a motion to do so. Unless the information is privileged in some fashion, the third party will have to disclose the information requested.

DEPOSITIONS

The other party can issue a notice of deposition to any third party witness. This means that a third party can be required to give testimony under oath usually in one of our offices.

The purpose of depositions is to find out information and to find out ahead of time what a person may testify to in court. You and your spouse could each be deposed for the same reason. We can issue notices of depositions as well.

A fact witness is entitled to a fee of $25 to appear and professionals (doctors, psychiatrists, etc.) are entitled to have their time paid for to appear (by the party that deposes them). A court reporter must be present and is paid to attend as well. The attorneys are paid to attend as well. Depositions are costly.

NOTHING HAPPENS QUICKLY

Generally, contested cases take several months to move through the court system. A complicated custody or equitable division case can take one, sometimes two, years to complete.

The courts are always full and there are several steps that have to be taken before a trial will be set, for instance, mediation, a guardian ad litem investigation, discovery, depositions, pre-trial hearings and motion hearings. It takes a long time to move a contested case through the court system and this will likely be your number one frustration.

We will do all we can to move the case forward, but you will still be frustrated with the time it takes to finish a case. Please prepare yourself ahead of time and please do not take this frustration out on us or my staff. We are doing everything we can to move the case along.

DISCOVERY

This is the “formal” name for exchanging information through subpoenas, written questions (interrogatories) and request for documents. Discovery has its own set of rules and deadlines which we will inform you about during the process.

SOCIAL MEDIA

This includes Facebook, MySpace, LinkedIn, Twitter and any sites like these.  You should expect any online profile on any social networking site or personal website to be scrutinized.

Once information has been posted online, either by you or by any of your friends, it becomes public.  It is nearly impossible to erase photographs, messages, chats or other posts from the web.  Once information has been posted, it can be captured and produced in court, even if you later remove it from your profile.

Understand the privacy settings of any website or social network you use on the web.  Take the same approach to your online profiles as you would in your public life, because it is just that – public.

Our rule is simple—do not put anything on any of these sites that you would not want a family court judge looking at.  Do not destroy any evidence either.  If it was ever posted, it can be found again.  Better not to put it out there in the first place.

TEXT MESSAGES

Your text messages will come back to haunt you.  Think before you text and if you would not say it in the courtroom in front of the judge, then do not say it at all.  Talk to your attorney instead.

CHILDREN

Marital problems are terribly difficult for children. Do your children a favor and do not “poison” the minds of your children against their other parent.

Do not speak about their parent’s faults to children. Do not complain to your children about how much child support you are paying or how little child support you are receiving.

Visitation with parents is NOT a bargaining chip or game. Each parent is entitled to visitation privileges with their children.

Children are not your property. They are not your pawns. They are absolutely not your messengers. They are innocent individual human beings that need both of their parents, not just the “best” parent.

ADULTERY

Do not become romantically involved with someone other than your spouse if you are still legally married (even if you are separated)! During marital litigation you should behave as though a detective and camera crew were following you and recording you and your conversations at all times.

CHILD CUSTODY CASES

You should behave as though a detective and camera crew were following you and recording you and your conversations at all times. Do not do anything that you would not be perfectly happy with a Family Court Judge seeing, hearing or finding out about when the Judge is deciding your custody case.

ATTORNEY’S FEES

In a child custody case, you could spend the price of a car in attorney’s fees. Most contested custody cases run upwards of $10,000 to $20,000 in fees paid out over the course of the case. This usually includes attorney’s fees, guardian fees, psychological fees and expert witness fees.

In a complicated equitable division case, the cost can be significant and sometimes more than a custody case depending on how much property there is to value and the difficulty of valuing assets. Even a very small business can run $2,500-$5,000 to value if there is a dispute as to the value.

A small equitable division case (which means there is a home, retirement, credit card debt, and other property or debts to divide) can run $5,000-6,000 in attorney’s fees over the life of the case. The most expensive part of the case is going to be trial preparation and attendance costs. That is why a trial retainer (an “up front” payment) is required in all contested cases. You will see this in your fee agreement and we reiterate here that a trial retainer is required for continued representation.

Joint Custody

I realize I talk a lot about “Joint Custody”, and many people may not even know what that is. Alabama Code 1975 30-3-151 defines the common terms:

 

(1) JOINT CUSTODY. Joint legal custody and joint physical custody.

(2) JOINT LEGAL CUSTODY. Both parents have equal rights and responsibilities for major decisions concerning the child, including, but not limited to, the education of the child, health care, and religious training. The court may designate one parent to have sole power to make certain decisions while both parents retain equal rights and responsibilities for other decisions.

(3) JOINT PHYSICAL CUSTODY. Physical custody is shared by the parents in a way that assures the child frequent and substantial contact with each parent. Joint physical custody does not necessarily mean physical custody of equal durations of time.

(4) SOLE LEGAL CUSTODY. One parent has sole rights and responsibilities to make major decisions concerning the child, including, but not limited to, the education of the child, health care, and religious training.

(5) SOLE PHYSICAL CUSTODY. One parent has sole physical custody and the other parent has rights of visitation except as otherwise provided by the court.

 

 

30-3-152 outlines the factors considered when courts award joint custody:

(a) The court shall in every case consider joint custody but may award any form of custody which is determined to be in the best interest of the child. In determining whether joint custody is in the best interest of the child, the court shall consider the same factors considered in awarding sole legal and physical custody and all of the following factors:

(1) The agreement or lack of agreement of the parents on joint custody.

(2) The past and present ability of the parents to cooperate with each other and make decisions jointly.

(3) The ability of the parents to encourage the sharing of love, affection, and contact between the child and the other parent.

(4) Any history of or potential for child abuse, spouse abuse, or kidnapping.

(5) The geographic proximity of the parents to each other as this relates to the practical considerations of joint physical custody.

(b) The court may order a form of joint custody without the consent of both parents, when it is in the best interest of the child.

(c) If both parents request joint custody, the presumption is that joint custody is in the best interest of the child. Joint custody shall be granted in the final order of the court unless the court makes specific findings as to why joint custody is not granted.

 

As always, courts in Alabama use the “best interest of the child” standard in all custody determinations.

Male Divorce Mistakes

Silvano D. Raso, a New Jersey attorney, has an article out today regarding five mistakes men make in divorce. Common sense, to be sure, but after the week I’ve just had, you can’t take anything for granted anymore.

1. Do Not Move Out of Your House: Chances are you are getting divorced because you cannot stand living under the same roof as your wife. However, until a court says otherwise, the house you are living in still belongs to you so you are still allowed to live there. You will continue to contribute to the household expenses while the divorce proceedings play out. If you move out, you will have to support two households — the one you are living in and the one you moved out of. Living together may not be an ideal situation, but it is the most cost-effective.

2. Do Not Hide Any of Your Assets: The last thing you want to do is lose your credibility in court. Some men panic and move money out of their bank accounts and into untraceable places such as overseas or in coffee cans. Once the money is discovered, you will no longer be trusted in any asset discussion in court. You should reveal everything that belongs to you so that you are viewed as honest in the court’s eyes and will not lose your case due to an impulsive act of stupidity.

3. Do Not Tell Your Wife How You Really Feel About Her : Your soon-to-be ex wife may taunt you to say something that can be perceived as threatening. This “threat” could result in a restraining order and get you kicked out of your house. Do not take the bait; turn a blind eye to everything negative she may say to you. If you need to blow off steam, vent to your friends. They don’t have a court case pending against you.

4. Do Not Misbehave Online: Anything on social media is fair game in a divorce case. This includes tweets, status updates, photos, etc. Set your privacy settings so that only you can see potentially incriminating information and do not post anything that could come back to haunt you in court.

5. Do Not Flaunt Your New Life : Getting involved in another relationship after you are divorced is healthy and expected. However, the key here is to wait until your divorce is final. A new girlfriend in your children’s lives could negatively impact you in a divorce case. Your new life may be portrayed as unstable when it comes to child custody. Gifts that you may give a new love that are visible, such as jewelry, can easily amp up an alimony payment to your ex. For your wallet’s sake, deal with the divorce, then move on.

Good advice, but I take #4 one step further than Ms. Raso: I encourage my clients to disable or delete all forms of social media during a pending divorce or custody case. The bad far outweighs the good, in my experience.

Read more here:

http://www.huffingtonpost.com/silvana-d-raso/the-male-side-of-divorce-_b_1749279.html

Ten Rules for Divorce

I discovered Regina Brett last year after reading her seminal book, “God Never Blinks” (buy it here). I follow Mrs. Brett’s blog (here), and she had an insightful post yesterday called “Ten Rules for Divorce”. I have reposted them here, because I think it’s good advice and something people can possibly relate to.

 

1. It’s too soon to tell:

It’s too soon to tell if this is a good thing or a bad thing. If it’s forever over or just a temporary split. You are just at the start of a process. Don’t judge it or you or him too harshly. Don’t analyze and awfulize this every minute of every day. It’s too soon to tell what it all means and how it all ends.

 

2. Be the heroine of your life story, not the victim of it.

That’s up to you. No one can make you a victim without your permission. You don’t need him to be the villain and you the victim. That doesn’t help anyone, especially your children.

 

3. This man will always be the father of your children. 

Your children need to hear you speak kindly and lovingly of their dad. If you need to bash him and vent, do so when they are not around. They share his DNA. They don’t want to feel they, too, are the bad guys.

 

4. Appoint yourself CEO of your joy.

It is no one else’s job to make you happy. Period. Maybe he did for a while, maybe he never did. Doesn’t matter. It’s up to you to build a life of joy no matter what life hands you. See it through the eyes of gratitude. You can survive without him. You can’t survive without you.

 

5.  Create a 9-1-1 list of people to help.

Put their names and cell phone numbers on an index card you carry with you at all times. Ask them to be “on-call” to lend you an ear, a shoulder, a tissue, an old plate to break in an empty parking lot, the number for a good attorney. Create your own support Dream Team of the most positive people you know.

 

6. No playing bad home movies.

It’s tempting to drift back in time and replay all the times he hurt you or loved you like crazy, which can make you feel crazy now. Stay present. Stay put in this day.

 

7. Pray for the serenity to accept the things you can’t change.

If he had an affair, you can’t change that. If he is in love with someone else, you can’t change that. If he can’t be talked out of the divorce, you can’t change that. Acceptance means you align yourself with what is and start from there.

 

8. Breathe.

Just pause and breathe. Take a deep breathe and count slowly to six. Exhale slowly as you count to six. The slower you breathe, the more you will feel calm. Breathe in the love of God; breathe out the love of God. There is a place of peace inside of you — find it. It is there. It’s like the centerpiece in the snow globe. He shook your snow globe and all the pieces went flying, except for the core of you. No one — no one — has the power to shake that.

 

9. Nothing you want is upstream.

I love that line. Stop strugglng. Stop swimming against the current. Stop forcing yourself on life and insisting it change. Turn and go with the flow. A God who loves you is in charge of this flow. Trust where the current is taking you. It’s somewhere better. Trust me. Better yet, trust you.

 

10. The best is yet to come.

As good as he was, you deserve better. You deserve the best. If this relationship is truly over, then he must not have been the best. He was a dress rehearsal. Maybe he was a great appetizer or the salad course. But he wasn’t the main dish. And he sure wasn’t the dessert.

 

The next relationship will be even more life enriching and life affirming. Tell the Universe, “I am ready for my perfect good.” Include your children in that perfect good. Keep your heart wide open and be ready for it to fill up with even greater love.

 

 

Read more: http://www.reginabrett.com/blog_comments.php?id=209&p=1

We Want Prenup (We Want Prenup)

Prenuptial Agreements. Their very utterance invokes a myriad of preconceived notions people have about their existence and utility. In essence, a Prenuptial Agreement is a legal document executed prior to a marriage that outlines and divides property and assets should the unlucky couple divorce. They are not always binding, and their execution and enforcement is often challenged in court on various grounds. Many things can never be included in a prenup, like child support, custody, or visitation issues. It’s highly advised that you have an attorney prepare a prenup, as the legal requirements for their valid execution are sometimes tricky.

Probably for the last time on this blog, I have provided a link to a website called “The Hollywood Gossip”. I’m not proud of it. But the article (ahem) notes some facts about the aforementioned TomKat divorce, essentially letting the anxiously waiting public know that Katie won’t receive much from Tom. Girlfriend, she shouldn’t have signed that thing. Read all about it here:

http://www.thehollywoodgossip.com/2012/07/tom-cruise-katie-holmes-prenup-how-much-will-she-get-in-the-divo/

In sum, prenups are good, but you have to do them correctly. It’s far better to spend a little money on the front end and take care of certain issues than wish you had when things start going down. Tom would agree.

 

Cruising to a Settlement

Pardon the pun, but sometimes it’s good to be vindicated. As I’ve previously mentioned here, the best course of action in a divorce is to approach things with an eye towards compromise and negotiation. And wouldn’t you know it, Tom Cruise and Katie Holmes agree! I would rather poke my eyes out with a sharp stick than pay much attention to anything celebrities do, but the recent announcement that TomKat (sorry) have/has reached a settlement in their divorce seemed like news enough to me.

Read the details:

http://www.huffingtonpost.com/2012/07/09/tom-cruise-katie-holmes-divorce-settlement_n_1659293.html?utm_hp_ref=celebrity

Notable quote:

“We are committed to working together as parents to accomplish what is in our daughter Suri’s best interests. We want to keep matters affecting our family private and express our respect for each other’s commitment to each of our respective beliefs and support each other’s roles as parents.”

If these two crazy (rich) kids can keep things out of court, anybody can. Call our offices today and we’ll guide you through the process.

Compliance and Contempt

Getting divorced in Alabama is oftentimes a landmine of legal intricacies, jargon, and confusion that many people struggle with. One of the most common post-divorce questions is, what can I do if my ex is not following our divorce papers? As previously discussed, you cannot withhold child support payments or deny visitation if your ex is not in compliance, but what can you do?

The remedy for noncompliance with a court-ordered divorce decree and/or agreement is a Motion for Contempt, or Motion for Rule Nisi. A sample Contempt Petition for Non-Payment of Child Support can be found here:

http://eforms.alacourt.gov/Child%20Support%20Forms/Contempt%20Petition%20for%20Non-Payment%20of%20Support.pdf

Essentially, these are show-cause petitions requesting your ex to appear in court and explain the reasons for their noncompliance. They are served with a copy of the Petition or Motion and have thirty days to file their Answer, at which time it will be set for a hearing. Judges in Alabama are particularly firm about parties complying with their Orders, and will not take lightly to a party’s willful disobedience.

If your ex is not complying with an Alabama divorce Order or agreement, you can enforce your rights in court. Call our office today at (866) 345-2528 for a free consultation.