Year: 2013

Holiday Visitation

Holiday time should be a happy time with family.  Yet, the meaning of the holidays seems to change when families are no longer together due to divorce.  But holiday visitation scheduling does not have to be stressful.  It is always up to you and your co-parent to make it a positive experience.  Both parents will obviously want to spend as much time as they can with the children, especially during the holidays.  Consider the following suggestions to make holiday visitation negotiations a little bit easier.

Create a PlanMany families decide to alternate holidays each year.  For instance, if you have the kids for Thanksgiving this year, you’ll get them for Christmas next year.  Taking turns makes things more fair and having a regular plan eliminates the need to negotiate every time.

Flexibility and Compromise.  Take into consideration each other’s work schedules.  If one parent has to work during Thanksgiving this year, but it’s their turn for visitation, maybe you should reconsider.  The kids wouldn’t want to stay at home alone. 

Pick your Battles. Don’t disagree just for the sake of disagreeing.  Some holidays may be more important to you than others.  If you enjoy Halloween with the kids, and your spouse loves the Thanksgiving holidays, consider that when establishing schedules.

Let bygones be bygones.  Bringing up old issues will only make it more difficult to reach an agreement about holiday visitation.  It will be worth it to set aside differences until after the holiday season in order to keep the peace.

Talk alone.  Don’t argue and debate about visitation in front of your children.  If you do, you will be creating negative memories of the holidays.  No one wants to be responsible for ruining this happy time.

What do the kids want?  It may be a good idea to find out what it is important to the kids. They may have a holiday gathering that holds a special place for them; if this is the case you should try and accommodate them if possible.

Relax and Enjoy.  The holidays can be stressful even if you aren’t divorced.  Don’t forget to relax and enjoy the holiday festivities and the company of friends and family.  It doesn’t have to be overwhelming.

if you have any legal concerns regarding visitation, don’t hesitate to give us a call.  Happy Holidays!

Divorce Basics: Part Two

Getting a Divorce in Alabama: Part II (Grounds for Divorce)

In Alabama, divorces are either contested or uncontested.  An uncontested divorce is possible when both spouses agree that divorce is necessary, and also agree about child custody, visitation, debt distribution, and splitting of assets.  Obviously, if a divorce is uncontested, it is usually easier and quicker to obtain and certainly less stressful for those involved.  However, when the parties cannot agree, the court must get involved and decide how these issues will be resolved.

When petitioning for divorce, grounds (a reason) for the divorce must be stated in the Complaint.  The statutes in Alabama that govern divorce proceedings list the following as possible grounds for divorce (not a complete list):

•           Incompatibility

•           adultery

•           desertion

•           imprisonment in the penitentiary for certain prolonged periods

•           addiction to alcohol or drugs

•           mental incapacity

•           cruelty

Incompatibility is the most common ground claimed and, in practice, is generally the easiest to prove.  Citing  “incompatibility” is usually referred to as a “no fault” divorce, because the reason for the divorce is not the fault of either spouse in particular.  No fault divorces can also be obtained when one spouse has voluntarily abandoned the other.

Is a finding of fault even necessary?

Depending on your situation, a finding of fault may be important.  It becomes relevant when there are issues such as child custody, alimony and division of assets.  A fault-based divorce is based on evidence that one spouse committed some type of misconduct during the marriage that has affected the marriage; adultery is the most common example.  In Alabama, when one spouse has committed adultery, that fact can be considered when determining if and how much alimony should be paid and how the marital assets and debts will be divided.

If you have any questions regarding divorce proceedings or any other family law issues, please do not hesitate to call our office at (205) 988-5570.

Divorce Basics: Part One

Getting a Divorce in Alabama: Part I (The Basics)

There may come a time when divorce seems a necessary consequence of a bad marriage.  It can be a daunting and emotional process.  But knowing what to expect ahead of time may make things a little easier.  This blog post will be the first of a six-part series on obtaining a divorce in Alabama.  This series is meant to provide general information so you will know what to expect, if you are facing the prospect of a divorce in Alabama.

The Basics

In Alabama, you must be a resident of the state for at least 6 months before you can file for divorce.  The legal documents needed to dissolve the marriage are filed in the county where either spouse resides, or in the county where they last lived together.  Both spouses do not have to live in Alabama for the divorce to be filed in this state, but if they don’t, the process for obtaining a divorce is a little more complicated.

After the process has been started by filing the appropriate legal documents, the other party is notified of the filing and given thirty days to respond.  The parties will attend several hearings with the judge in order to discuss issues such as child custody and support, if applicable, visitation, alimony and division of property.  If the couple can reach an agreement and execute a settlement on their own, that is always best.  However, that is not always possible.  When an agreement cannot be reached between the parties, the case will go to trial so that the court can make all final determinations.

Do I need an Attorney?

Whether you need an attorney depends on whether you and your spouse can agree on all of the terms.  Even when you have reached an agreement, you may still want to get some advice from a family law attorney, at least to finalize everything.  If you cannot come to an agreement, you will almost certainly need an attorney.  If your spouse hires an attorney, it is very important that you at least consult with an attorney, if you cannot hire one to fully represent you.

As always, contact my office for a free initial consultation, (205) 988-5570.

Adoption

Is the adoption process as complicated as I’ve heard?

Did you know that in Alabama, there are hundreds of children growing up in foster care waiting to be adopted?.  Adoption is a lifelong commitment and demonstrates love, support and unity.  Whether you are considering adopting a child in foster care or adopting a relative, friend or step-child, the process is not as complicated as you may think.  That is especially true if you have the assistance of an experienced family law attorney.

Every adoption requires a substantial amount of paperwork.  However, experienced family law attorneys can assist in preparing all of the necessary forms for either domestic or international adoptions.  With that assistance, the process is more manageable and easier to navigate.

Stepparent Adoptions

One common type of adoption occurs when one spouse adopts the child of another spouse.  This can be a good idea in “blended families” where insurance coverage is needed, for example.  The consideration of stepparent adoption can arise when the biological parent is no longer a part of the child’s life, either due to abandonment or death.  Either way, adoption by the stepparent will send an important message to the child that he or she is loved and wanted.

If you have a pending adoption, consulting with a family law attorney in Alabama will ensure that you avoid the pitfalls of the unwary.  Although the process is not that daunting, issues can still arise such as the rights of the biological parents.  Having an experienced family law attorney involved from the very beginning will most likely lead to the best outcome.

If your pending adoption is domestic or international, employing a family law attorney can help you avoid the pitfalls that sometimes catch parents unaware. Occasionally, when a couple is just about to become the parents of an adopted child, a problem with the paperwork, the Court, or the biological mother can complicate things. Having an attorney on hand from the beginning gives you a major advantage and can usually lead to better results.

Call our office today for a free consultation, (205) 988-5570.

Paternity 101

ESTABLISHING PATERNITY: 101

If the need ever arises to seek child support, a finding of paternity is required before a support order can be established, if a child is born to unmarried parents.  Even if the parents plan to marry after the baby is born, establishing paternity as early as possible protects the father’s relationship with the child from the very beginning.

A father can acknowledge paternity on his own by signing a written admission or voluntary acknowledgement of paternity.  An acknowledgement of paternity ultimately becomes a finding of paternity after 60 days, unless the man denies that he is the father before that time.  A finding of paternity based on an acknowledgement generally may only be challenged based on fraud, duress, or material mistake of fact.

Each state has a program where the hospital gives unmarried parents an opportunity to acknowledge the father’s paternity at birth.  Each state is also required to assist parents in establishing paternity until a child turns 18, through offices such as vital records.

When necessary, paternity can be established through a court or administrative hearing.  If a man is served with notice of a paternity hearing and does not appear, paternity can be established by default.  If a man is not certain that he is the father of a child, he can request that genetic testing be arranged.  Genetic tests are easily administered and highly accurate.

Establishing paternity is very important.  Once accomplished, the child gains legal rights and privileges, including inheritance rights, access to the father’s insurance benefits, social security benefits and veteran’s benefits, if applicable. Furthermore, the child’s medical history will be more complete, which assists physicians and other healthcare providers in properly treating the child.  More importantly, the child will be able to develop and nurture a relationship with his or her father and gain a sense of identity.

Call our office today for a free consultation to discuss this and any other issues, (205) 988-5570.

 

Visitation Issues

WHAT ARE MY OPTIONS IF MY EX WON’T LET ME SEE MY CHILD?

After a divorce, there are always lingering issues and potential problems. When there are children involved, those problems can be magnified.  Yet the most frustrating and emotionally draining concern is an ex-spouse who refuses to let you see your children.  Rest assured, you are not alone, and there are things you can do to work things out.

Step One:  Try to talk reasonably with your ex.

After a divorce where children are involved, child custody should have been determined and visitation rights established.  The first step to working out child visitation issues, after the dust has settled, should always be to talk to your ex about your visitation rights. Approach the issue calmly and reasonably.  Many times these issues can be resolved by both parties without having to return to court.

Sometimes, the problems or misunderstandings that occur regarding visitation come from a lack of specifics in the visitation order itself.  If the terms of the order are too vague, conflict regarding certain terms will arise.  An unclear visitation order also makes it difficult to show to the court, if necessary, that your ex is violating the order.  If this is the case, the solution may be to ask the court to modify the order and include more specific terms.

For example, if there seems to always be a disagreement about what time your children should be picked up or returned to the custodial parent, then a modification of the order that sets specific times could go a long way to resolving that issue.  Sometimes, however, the problems are more complicated.

Step Two: Involve the Court if your ex refuses to cooperate.

In some cases, no matter how reasonable or compromising you may try to be, there is just no way to reach an agreement.  That is when you must turn to the court for help.  A visitation order is a binding court order with which both parties must comply.  Therefore, if your ex is clearly violating the terms of the order, he or she can be found in contempt of court for failing to comply.

At that point, you should contact an attorney to assist you in filing the proper documents with the court, explaining how your ex is violating the order and requesting that the court require him or her to comply.  There are several remedies available, which your attorney can explain to you.  Don’t give up your rights.  An experienced family law attorney can help you resolve these and other divorce related issues.

Contact our office today for a free consultation, (205) 988-5570.

Alabama Case Law Update–Post Minority Support

For the past 24 years, since the case of Bayliss v. Bayliss was decided, child support awards have included post-minority support for college. In other words, even though under Alabama law your child is no longer a minor after reaching age 19, a non-custodial parent could still be required to provide support for college expenses. In a significant Alabama Supreme Court decision, handed down on October 4th, college expenses are no longer a factor in child support awards.

The rationale behind the Bayliss decision.

In 1989, the Supreme Court interpreted Alabama’s child support statute to allow for post-minority support for a child’s college education. In doing so, the Court essentially created new law, as the statutory age of majority in Alabama is 19. In Bayliss, the Court determined that the statutory term “children of the marriage” did not refer only to minors, despite the long-standing construction of the statute to the contrary. Since the decision 24 years ago, courts have continuously expanded the ruling to include other expenses tied to college education.As Stephen Johnson, chairman of the Family Bar Section of the Alabama State Bar Association, has pointed out, “[t]he Bayliss case has been the subject of controversy for the last 24 years.”

Christopher v. Christopher expressly overruled Bayliss.

In reaching its decision, the Alabama Supreme Court in Christopher pointed out that there have been no new statutes relating to children or child support which changed the definition of “child” since the Bayliss decision. The Court stated in its conclusion:

“The Bayliss Court failed to recognize the ordinary and common-law definitions of ‘child’ as a minor, did not defer to the Legislature’s designation of the age of majority, and failed to observe the canon of construction that courts cannot supply what a statute omits. Accordingly, we expressly overrule Bayliss.”  The Court also explained that “reversing Bayliss and returning the Legislative power to decide if post-minority educational support should be authorized in a divorce case, does not make new law but, instead vindicates the old one from misrepresentation.”

What about prior awards of college support?

The Supreme Court was clear that this decision will not affect final post-minority educational support orders which were entered before this decision was handed down. However, any future decisions will be overruled.

Please contact our office at (205) 988-5570 if you have further questions.

Discovery Part II: Interrogatories

Continuing our discussion regarding Discovery, today we’re taking a look at Interrogatories. Covered under Alabama Rules of Civil Procedure Rule 33, Interrogatories are a very common tool used by lawyers in family law and divorce matters. Simply stated, Interrogatories are questions from one party to the other, whose answers are sworn under oath. Parties are limited to forty (40) interrogatories “without leave of court”, in other words, without the court’s permission.

Interrogatories “may relate to any matters which can be inquired into under Rule 26(b), and the answers may be used to the extent permitted by the rules of evidence.” -ARCP Rule 33(b.) Parties also generally have a duty to amend or supplement their responses if their answers change, or they discover new information.

I have provided some sample Interrogatories below to give an idea of their form and content.  This is not an exhaustive list, but will show generally how Interrogatories are presented.

COMES NOW the Plaintiff, John Doe, by and through his attorney of record and requests that Defendant Jane Doe answer the following Interrogatories under oath, within the time and in the manner prescribed by law.

a. These Interrogatories are continuing in character so as to require you to file supplemental answers and responses if you obtain further or different information before trial.

b. Where the name or identity of a person is requested, please state the full name, home address, and business address, if known.

c. Where knowledge or information in possession of a party is requested, such request includes knowledge of the party’s agents and representatives.

d. The pronoun “you” refers to the party to whom these Interrogatories and Requests are addressed and the persons mentioned in subparagraph “c”.

1.         State your complete name, age, residence address, Social Security number, and driver’s license number.

 2.         State each job or employment which you have held since the age of nineteen, listing the name of your employer, job title, salary or wages, years employed and reason for leaving said employment.

 3.         Please state your present occupation and present monthly salary, wages, and earnings, including as part of your answer, your monthly gross earnings, and the nature and amount of any deductions and take home pay.

4.         Please state the gross income, adjusted gross income, and the taxable income reported on every income tax return you have filed since the age of nineteen. As part of your answer, please attach a copy of your state and federal returns. State also your gross income for the present year to date.

5.         Please list your current monthly living expenses as of the time you are answering these interrogatories for the following items:

a)         Utilities;

b)         Food;

c)         Clothing;

d)         Housing (mortgage payment, taxes, insurance, rent, etc.);

e)         Laundry/cleaning;

f)         Transportation (car payment, gasoline, etc.);

g)         Medical care (dental, vision, copays, prescription drugs, etc.);

h)         Education;

i)          Insurance;

j)          Recreation, entertainment, and travel;

k)         All other monthly expenses not listed above.

6.         Please state whether your monthly living expenses referred to in the preceding interrogatory above includes the support of any persons other than yourself. If your answer is in the affirmative, specify completely and in detail how much of each of the sums have been allowed for such other person or persons.

7.         Do you have a valid driver’s license? If so, please list the issuing state, driver’s license number, and expiration date.

8.         Please list each and every automobile or motor vehicle which you currently own, possess, control, or drive, stating the make, model and body style, the license plate number for the current year, and the owner of said vehicle.

9.         Have you ever been charged and/or arrested for any crime and/or violation? If so, give dates, nature of charges and offense, jurisdiction, and disposition of case.

10.       Please provide a list of persons who live in your home, or whose home you live in, including names, dates of birth, and occupations.

11.      Please provide a list of any persons who the child spends any time with, including names, dates of birth, criminal history, and occupations.

12.       Please provide a detailed schedule of your visitation and communication with the child  for the past twenty-four (24) months.

 13.       Please state whether any family member has ever cursed, directed abusive language, or made threats to the Plaintiff or any member of Plaintiff’s family. If so, please state what was said, when it was said, and any persons present.

14.       Please state whether you contend that the Plaintiff committed wrongdoing of any nature prior to the filing of this action and/or subsequently thereto. If so, state the dates and times and nature of the alleged misconduct, giving in detail the facts and circumstances which support your allegation(s).

Finding a Divorce Lawyer

Our office gets countless calls throughout the day from people looking for a lawyer. People generally ask the same few questions: What is this going to cost? How long will the process take? What outcome can you predict? Unfortunately, these are the wrong questions to ask. Just as lawyers “interview” clients during consultations to determine if they are a good fit for their firm, clients should interview lawyers as well. At a minimum, clients should ask their prospective lawyer the following questions before hiring them:

  1. How long have you been practicing law in this area?
  2. How do your fees work? Do you provide a written fee agreement?
  3. What percentage of your practice is in this area?
  4. Who from your firm will be working on my case?
  5. What are your procedures for notifying me of case updates/information? How do you communicate?
  6. What is your case strategy/philosophy? How do you prepare for trials? Settlement negotiations?

These questions should be asked prior to hiring any lawyer or law firm, to save both the client and lawyer time and frustration.

Divorce: Costs and Pricing

We get numerous calls every day from people asking, “How much is my divorce (or case) going to cost?” The short answer: it depends. The long answer:

Before we can tell you what your case will cost, we need some information from you.

  • To start, how long have you been married?
  • Do you and/or your spouse work?
  • Do you share bank accounts, or have separate accounts?
  • Do either of you have a retirement plan?
  • How do you handle life, health, vision, and dental insurance?
  • Do you own a home?
  • Will it be kept, or sold?
  • Is one of you moving out?
  • Do you have items in the home that need to be divided?
  • Do you have children?
  • If so, have you agreed on a custody arrangement?
  • A visitation schedule?
  • Child support?
  • Health insurance?

This is the starting point to even determine if your divorce will likely be contested or uncontested. Until you meet with an attorney and discuss these issues in detail, there is no way an attorney can know what your case will cost. After the consultation, however, if you have identified the main issues above and had a discussion regarding case expectations, your attorney should be able to provide at least a ballpark estimate of the time and costs expected in your case.