Year: 2014

Legal Separation

What is “legal separation” in Alabama?

When a married couple in Alabama no longer wants to live together, but they do not wish to get a divorce, they have the option of petitioning for a legal separation.  Although a couple has the right to separate at any time, living in separate locations is not enough to constitute a “legal separation.”  So what does it mean to legally separate?

What are the requirements?

A legal separation is similar to a divorce in that a court order sets out the child custody arrangements, child and spousal support payments, allocation of assets, and debt payment obligations.  You and your spouse must then abide by those terms. In order to obtain a legal separation, you must demonstrate to the court one of the following situations: (1) your marriage is “irretrievably broken,” (2) you or your spouse desire to live apart from one another, or (3) you and your spouse are too incompatible to cohabit in the same home.

Can the terms of the separation be modified?

Once your request for a legal separation has been granted, the terms of the separation decree, much like a divorce decree, become legally binding.  If you want to modify those terms later on, you can only do so with court approval, unless you both agree to the changes in writing.

What does it mean to be legally separated?

Once you and your spouse are legally separated, you are free to obtain and convey property without your spouse’s consent. Consequently, if you later divorce, the state of Alabama will consider any property you acquired after the legal separation as your own separate property. This means your spouse would have no claim to these assets during the divorce.

What if we want to reconcile?

If you and your spouse decide to reconcile after legally separating, the separation must be dissolved.  This requires that you and your spouse put your request to dissolve the arrangement in writing and submit it to the court. The court will then terminate the separation, allowing you and your spouse to return to married life.

If you have questions regarding legal separations, or any other divorce issues, contact attorney Brad J. Latta online, or by calling (205) 998-5570.

Adoption in Alabama

The Adoption Process in Alabama

The decision to adopt a child is a very important one.  If you are considering taking on this important responsibility, it is important to understand what is required and what the process of adoption in Alabama entails.  Consulting with a family law attorney can give you the peace of mind you seek when embarking on the journey of taking a child into your home.

The concept of adoption

Adoption is the legal process through which adoptive parents are given permanent parental rights to someone else’s child.  Adoption means taking a child into your home as a permanent family member. It means caring for and guiding that child through his or her childhood and giving them everything they need to reach their full potential.

The Alabama Department of Human Resources is the state department responsible for securing adoptive homes for children who are available for adoption, following termination of parental rights.  There are several steps that potential adoptive parents must go through.  While the process is not difficult, a general understanding of what to expect can make the transition easier.

Meeting Adoption Requirements

In addition to being willing and committed to being a parent and providing the love and guidance a child needs, there are some basic requirements that every adoptive parent must meet.  Those requirements are as follows:

  • Over the age of majority (which in Alabama is 19)
  • If married, must have been married for at least 3 years
  • If married, at least one spouse must be a U.S. citizen
  • Have adequate housing & personal space for the adopted child
  • Healthy enough to meet a child’s needs.
  • Willing to undergo a thorough background check, including criminal history

When all of these requirements have been met, the next step is to officially submit an application to become an adoptive parent.

Submitting an Application

Once you are sure that adoption is something to which you and your family are deeply committed, the next step is to request an Application to Adopt. The completed application should be returned to the county Department of Human Resources, where you live.  Our firm is ready to assist you in completing and submitting your application for adoption, and guiding you through the entire process.

Group Preparation & Selection Meetings

After your Application to Adopt is received, the next step is attending Group Preparation and Selection (GPS) meetings. GPS is a program designed specifically to educate potential adoptive families regarding various relevant topics on their upcoming adoption experience. During this program, a social worker will also interview you and other family members in your home.

Approval as an Adoptive Resource

After a family profile and home study have been conducted for your family, the information gathered will be evaluated and a determination will be made as to whether you are approved as an adoptive resource.  Your county Department of Human Resources will send you written confirmation of your approval.

Background Information & Pre-Placement Visits

The State Office of Adoption determines child placement.  When you have been selected as a potential adoptive resource for a particular child, you will be given an opportunity to review that child’s background information.  Any questions or concerns you may have will be addressed, as well.  If you decide that your family may be able to offer a home to that child, pre-placement visits will be arranged.

Legal Proceedings for Court Sanctioning

Once the child has been successfully placed in your home for at least 3 months, the final step in the process is to obtain sanctioning by the court that the child is legally yours.  If you have questions regarding adoption, or any other family law issues, contact attorney Brad J. Latta online, or by calling (205) 998-5570.

 

Spousal Support

What is Spousal Support?

When you are going through a divorce, or even just starting to consider whether divorce is the best decision for you, fear of being unable to take care of yourself may be a serious issue.  This is especially true if you were not the financial breadwinner in the relationship.  In most cases, spousal support, or alimony, is available and there are many different types of support that may be appropriate in your situation.

What is the purpose of Spousal Support?

The purpose is to limit any unfair economic effects of divorce by providing continuous income to a spouse who is either unemployed, or earning lower wages than the other.  Another purpose can be to allow one spouse to continue the standard of living he or she was used to during the marriage. Unlike with child support, most states do not have very specific guidelines regarding spousal support.  The decisions regarding the amount of support and how long it should be received is left up to the discretion of the court.  In some situations, a spouse can receive more than one kind of support at the same time.

Types of Spousal Support

Spousal support is either short term or long term.  In some cases, financial support may be more necessary immediately after the separation to support the lower-earning spouse while the divorce is pending. In that situation, temporary support may be awarded.

In cases where the marriage only lasted for a short time, many judges will order short-term support that lasts only a few years, that ends on a specific date.  Rehabilitative support is a specific kind of short-term support designed to give a dependent spouse the opportunity to get back into the workforce. Rehabilitative support will end when the spouse is able to return to work, and the recipient must remain diligent in obtaining work. Long-Term or Permanent Support is rarely awarded, and usually only in cases where the judge concludes that the dependent spouse most likely will not return to the workforce.

Termination of Spousal Support

Even when a support order does not include a specific termination date, spousal support will end if the recipient dies or remarries.  In some states, if the recipient cohabitates with another person the support will end.

If you have questions regarding alimony or spousal support, or any other divorce issues, contact attorney Brad J. Latta online, or by calling (205) 998-5570.

 

Alabama’s Expungement Law

Alabama’s New Criminal Record Expungement Law

While it is true that Alabama has recently passed a new law that allows certain aspects of an individual’s criminal record to be expunged, or wiped away, there are many requirements and exceptions that must be understood. There are so many Alabama residents who have been arrested and although their charges were dismissed, they still have an arrest record. The Alabama criminal defense attorneys at our firm are knowledgeable of the ins and outs of this new law and are available to help you determine whether you, or someone you know, can benefit.

Who is eligible under the new law?

If you have been charged with a non-violent felony, a misdemeanor criminal offense, a traffic violation, or a municipal ordinance violation, the record may be expunged (erased) if any of the following circumstances apply:

  • the charge was dismissed with prejudice,
  • the charge was no-billed by a grand jury,
  • you were found not guilty of the charge,
  • the charge was dismissed without prejudice more than five years ago (felony) or two years ago (all others) and has not been refiled.

If you were charged with a non-violent felony, you may also have the record expunged one year after completion of a diversion program like drug treatment, mental health treatment or veterans court. Also, if you have a non-violent felony charge, it is required that you not have been convicted of any other felony or misdemeanor crime, any violation, or any traffic violation, excluding minor traffic violations, during the previous five years.

Felony charges that cannot be expunged

Violent felonies, including the following, are not eligible for expungement:

  • capital murder, murder, and manslaughter,
  • assault,
  • kidnapping,
  • rape, sodomy, and sexual abuse
  • robbery and burglary,
  • arson,
  • stalking, and domestic violence

How does it work?

First, a petition must be filed with the Circuit Court where the criminal charge was originally filed. The petition needs to include a sworn statement that the person meets the expungement requirements set out in the law, a certified copy of the arrest record, and a description of the charges to be considered. Also, a filing fee of $300.00 must be paid when filing the petition, along with any court costs. The types of records that will be erased include arrest records, booking or arrest photos, index references for public records searches and other documents or electronic files concerning the arrest or charge.

Can someone object to the petition?

There is an opportunity given to both the District Attorney’s office and the victims to object. If an objection is filed within 45 days of your petition requesting expungement, the court will set a hearing in order to consider the objection and make a ruling. If there is no objection, the court generally considers your petition and makes a ruling without a hearing.

If you have questions regarding criminal records, or any other criminal defense matters, contact attorney Brad J. Latta online, or by calling (205) 998-5570.

Collecting Child Support

Collecting Child Support: Know Your Rights!

Child support is the money paid by a non-custodial parent to help meet the needs of his or her child.  Once a custodial parent has obtained a Child Support Order from a court or administrative agency, requiring the non-custodial parent to pay child support, some parents need assistance actually collecting on that order.  Our law firm has substantial experience in this area and we are ready to help you obtain the money you are entitled to.

What types of services are needed in collecting child support?

There are several steps that must be taken from the point a legally enforceable order for support is obtained.  The first step, in some cases, is locating the non-custodial parent.  Once found, it may be necessary to establish paternity before the order can be enforced against that parent.

Once the non-custodial parent is located, the process of collecting and monitoring payments is the next step.  Child support issues are often ongoing and last many years. Even after you begin receiving payments, there may be a need to adjust the amount of support depending on the changes in the circumstances of the non-custodial parent.  We can help you every step of the way.

Who is eligible to receive child support in Alabama?

Anyone who is a caretaker of a child may be able to apply for child support for that child.  It is not always necessary to have legal custody of the child.  It depends on the situation.  Pregnant women may also apply for support before the child is born.  The right to child support is not dependent on the income of the custodial parent or caregiver.  In other words, there are no income limits to eligibility.

What do I need to have in order for you to work on my case?

The most important thing is proof that you have the responsibility for and control of the child.  This can include the child’s birth certificate, naming you as a parent; proof of guardianship or custody; a letter from Social Security stating you are the child’s representative payee; or a statement from the child’s school stating that the child lives with you.

If you have questions regarding child support, or any other family issues, contact attorney Brad J. Latta online, or by calling (205) 998-5570.

Termination of Parental Rights and Child Support

Does Termination of Parental Rights Affect Child Support Obligations?

Usually when two parents are no longer married or living together, child support payments are made by the non-custodial parent, to provide continued financial support for the child.  This can be done even when the non-custodial parent does not have any contact with the child.  What happens, though, when the parent who is paying child support no longer has any parental rights?

Involuntary termination of parental rights

The Alabama Supreme Court issued a ruling in a 2009 case that addressed whether termination of parental rights has an effect on the obligation to pay child support.  In that particular case, after the couple had divorced, the father was convicted of raping the mother’s child from a previous marriage.  The mother then initiated proceedings seeking to terminate the father’s parental rights to the two children of their marriage.  The father’s parental rights ended in October 2005.  In January of 2007, the mother filed a petition seeking payment of unpaid child support, based on the order entered when the couple divorced in 2003.  The juvenile court handling the case found that the father was no longer required to pay child support because his parental rights had been terminated.  The mother appealed.

An issue of first impression

The Court of Civil Appeals found this matter to be an issue of first impression.  Looking at the Alabama Child Protection Act, the appellate court determined that, since the act does not address the issue of paying child support after parental rights have been terminated, then the juvenile court’s ruling was correct.  However, the Supreme Court disagreed.

In fact, the Supreme Court held the opposite.  The Alabama Child Protection Act does not suggest that the termination of parental rights automatically terminates the obligation to pay child support.  A judgment terminating parental rights ends that parent’s right to custody of the child, among other things.  However, a parent still has an obligation to provide support for the child.  The Court also reasoned that custodial parents should not be forced to choose between seeking to terminate the parental rights of an abusive parent in order to protect a child and receiving financial support, to which the child has a legal right.

If you have questions regarding child visitation, or any other divorce issues, contact attorney Brad J. Latta online, or by calling (205) 998-5570.

Juvenile Delinquency & College

How Can I Apply to College with a Juvenile Record?

Graduating from high school is an important milestone.  For those planning to go to college, the application process can be a daunting task.  That process can be made more stressful if you have a juvenile record.  Having a record does not necessarily mean you will not be able to get into college.  However, having a criminal record may influence the final decision of a college admissions committee.  Understanding how to handle this situation can make the process a little easier.

Disclosing your criminal record on the application

One of the first questions clients ask is whether they have to acknowledge their criminal record on the application.  It depends.  If the application asks whether you have ever been convicted of a crime, you only have to answer “yes” if you were actually convicted.  Simply being charged for a crime is not the same and does not need to be reported.  On the other hand, if you were convicted but your record was expunged, you can also answer “no.”  Expungement erases any juvenile convictions you have on your record.

How can I get my record expunged?

Expungement is a possibility for certain defendants if a mistake was made in your case or if the details of your case meet certain criteria. Also, if you were charged but not convicted of a crime, you can also request to have the charge expunged from your record.

Will colleges see my criminal record?

Unfortunately, even though some juvenile records may be sealed, colleges have the right to review juvenile records for application purposes.  But understand that not all colleges take criminal history into account when reviewing applications and making admissions decisions.  Applying to college after a conviction is likely to be more complicated.  However, with the legal advice of an experienced juvenile defense attorney, you can protect your rights and opportunities. If you have questions regarding juvenile defense or any other criminal issues, contact attorney Brad J. Latta online, or by calling (205) 998-5570.

Alabama Alimony

I have not been married long.  Will I get alimony in Alabama?

Many Alabamians have the notion that divorce courts in our state never award alimony in a marriage that lasts less than 10 years.  The truth is, there is no bright line rule on this issue.  Although it is rare, from time to time Alabama courts will award alimony to a spouse after a short-term marriage.  It will generally depend on the special circumstances in that case.

What is the purpose of alimony?

The purpose of alimony is to limit any unfair economic effects of a divorce by providing continuing income to the spouse who is either unemployed, or earning lower wages than the other.  The justification for this award, in part, is that one spouse may have given up a career to support the family.  As such, that spouse needs time to find ways to support himself or herself.  Another purpose of awarding alimony may be to allow one spouse to continue the standard of living he or she was used to during the marriage.

 Alimony awarded after a 6-year marriage

One Alabama case, decided in 2009, provides an example where an alimony award was appropriate after a marriage of less than 10 years.  In Lackey v. Lackey, the wife quit her job as a nurse to care for the couple’s children, while the husband was in residency and pursuing his medical career.  Upon their divorce after six years, the Husband was ordered to pay $1,500 per month in permanent alimony (which means until the wife remarries or cohabitates with a member of the opposite sex).  The husband appealed the ruling, but the appellate court affirmed the award.

What factors does the court consider?

The appellate court discussed the factors that Alabama trial courts should consider in determining the need for alimony in each case.  The court stated as follows:

When dividing marital property and determining a party’s need for alimony, a trial court should consider several factors, including ‘the length of the marriage, the age and health of the parties, the future employment prospects of the parties, the source, value, and type of property owned, and the standard of living to which the parties have become accustomed during the marriage.

It is also interesting to note that the appeals court also considered the fact that the husband was in pursuit of a professional license, which would provide him with the income necessary to pay the alimony.

If you have questions regarding alimony or any other divorce issues, contact attorney Brad J. Latta online, or by calling (205) 998-5570.

Grandparent Visitation

What rights do grandparents have to visitation following a divorce?

An important and sensitive issue in any divorce where children are involved is the right to visitation.  The non-custodial parent will likely seek reasonable visitation rights to the children.  Under good circumstances, the parents are able to agree on the terms of visitation.  But how often do the parents consider the rights of grandparents to visitation?  The parents of the non-custodial spouse may be completely left out of the equation.  Do they have rights to visitation in Alabama?

Grandparent rights to visitation in Alabama

Yes.  In Alabama, grandparents have the right to visit their grandchildren as well.  Any grandparent has the ability to file a petition to enforce these visitation rights, under many different circumstances – not just divorce.  As long as the grandparent’s visitation is deemed to be in the best interest of the child, they can seek visitation under any of the following situations:

  • One or both parents of the grandchild have died
  • The parents of the grandchild have divorced
  • A parent of the grandchild has abandoned the child
  • The grandchild was born outside a marriage
  • If the parents of the grandchild are still married and living together but one or both of the parents are using their authority to prevent a grandparent’s relationship with their grandchild.

In reviewing the grandparents’ petition and the best interests of the child, the court will consider the grandparents’ willingness to nurture a relationship with the child and his parents, the grandchild’s preference if any, the health of the grandchild, the mental and physical health of the grandparents, evidence of domestic violence within the family, and  any other relevant factors.  The court may also consider the preferences of any living parent.

If you have questions regarding grandparent visitation, or any other divorce or domestic issues, contact attorney Brad J. Latta online, or by calling (205) 998-5570.

Who Needs a Will?

Who Should Have a Will?

Everyone should.  Yet almost 70% of all Americans do not have one.  Does it matter who gets your money or property when you die?  Do you care who is appointed as a guardian to care for your minor children, should you unexpectedly die?  If you answered yes, then a you need to have a will.  A Last Will and Testament is the easiest way to plan for the inevitable and make the important decisions while you still can.

Wills are not only for the wealthy

No matter how much money you have, drafting a will ensures that your personal belongings and other assets will go to the people you choose.  Otherwise, the laws of your state and a disinterested judge will make these decisions for you.

Selecting a guardian for minor children

If you have young children, a will is critical.  Without a will, you have no say in who will take care of your children should you die while they are still minors.  Making these significant decisions now and discussing your desires with the individuals you plan to nominate as guardians is the best action you can take to secure the future of your children, as well as your peace of mind.

What happens if you don’t have a will?

Dying without a will does not necessarily mean your property will not go to your surviving family.  Actually, your closest remaining relatives are the ones who will typically receive your property, pursuant to the laws of “intestate succession” in your state.  However, you may have other plans in mind.  Without a will, your property will go to your relatives as determined by law. How the property will be distributed depends completely on which relatives are still alive at the time of your death.

If you have questions regarding wills, or any other estate planning issues, contact attorney Brad J. Latta online, or by calling (205) 998-5570.