Month: March 2014

Unmarried Child Custody Issues

Is Determining Child Custody More Difficult When the Parents are not Married?

While it is true that working through child custody issues when the parents are unmarried presents some unique issues, the process does not necessarily need to be more difficult. In this situation, the most common scenario is a father fighting for contact and visitation rights and a mother struggling to obtain child support from the father.  An experienced family law attorney will have the skill and knowledge to assist either parent through this process.

Who gets custody of the child if the parents never married? In many states, the unmarried mother is usually awarded sole physical custody unless the unmarried father files a petition in court seeking to be awarded custody.  Alabama prefers to award custody to both parents, encouraging them to share the responsibilities of raising their child.  Either way, a court will ultimately make the decision.

Child custody concerns for the unmarried father

In some unfortunate cases, a mother will refuse to allow the father access to the child. In those cases, the father will need to go to court in order to be allowed visitation rights.  This process includes first establishing paternity.

If a father seeks full custody, it is often an uphill battle.  Rarely is a father awarded custody over the mother unless the mother is determined to be unfit, or if there are health and safety issues with the children.  The most likely outcome is a form of joint custody, when feasible, or visitation.  Like most other areas of family law, the parents can always come to an agreement outside of the court process.  When that is not possible, only the court can resolve these issues.  Although it takes time and money to go through the court process, fathers should not be discouraged. Many courts, like Alabama, are of the opinion that joint custody is in the best interest of the child.  That is the applicable standard.

Child custody concerns for the unmarried mother

The mother’s biggest concern, unless there are issues regarding her fitness to have custody of the child, is fighting for financial support.  A finding of paternity is always required before a father will be forced to pay child support. Without this finding, the court is unable to issue an order requiring a father to pay.

Of course, child support payments can be made voluntarily.  But without a finding of paternity, the mother cannot force the father to continue payments if he decides at some point to stop making them.  In other words, if a mother is relying on voluntary payments by the father without a finding of paternity, she will find herself in a difficult situation if the father decides to stop paying voluntarily.

If you or someone you know has questions or needs assistance with child custody and/or visitation, please contact our firm either online, or by calling (205) 533-7476.

Juvenile Defense

Many people refer to “bad” kids as juvenile delinquents or troublemakers.  However, not every child who commits a crime is a “bad” child, destined for a life of crime.  All children have the potential to contribute greatly to society, even those who make mistakes or are the victims of bad choices.  Unfortunately, mistakes that catch the attention of law enforcement can lead to long-lasting effects for a child.  An attorney who practices juvenile defense can be invaluable in navigating the criminal system and protecting your child from unnecessarily harsh consequences.

Common crimes committed by juveniles

The most common types of criminal activity juveniles get caught up in are property damage or vandalism, theft and shoplifting, and disturbing the peace.  Some more serious juvenile offenses can include drug-related or violent crimes. For some children, participating in these activities is a result of peer pressure or simply their learning process on the way to becoming an adult.  Of course, parents are always greatly distressed to find out their child has committed a crime.  But does not have to have devastating consequences.

Benefits of Hiring a Juvenile Defense Attorney

Many people see defense attorneys as simply doing a job and assume that they do their jobs regardless of whether they believe the defendant actually committed the crime alleged.  When it comes to juvenile defense, however, it is essential to understand that kids are always experimenting with the limits of acceptable behavior.  For many kids, it is a normal part of growing up, even though it can result in an unintended brush with the law.

Many children who find themselves in this situation are dealing with a difficult family circumstances, made friends with the wrong crowd, or are just seeking an outlet. On the whole, many juveniles are merely the victims of mistake or lack of good judgment, not because of an innate malevolent streak.  Our firm believes that juvenile defense is a very serious service, especially because these types of charges could affect that child’s future. A one-time mistake or use of poor judgment should not be allowed to overshadow the rest of a young life or limit a child’s opportunity for a successful future.

Juvenile crime in Alabama

The statistics in Alabama are not encouraging.  In a report published by the Alabama Criminal Justice Information Center, there were more than 8,000 arrests of children under the age of 17-years-old in 2012.  Most minors who are arrested in Alabama are usually charged with a delinquent act — not a crime. Nevertheless, charges of juvenile delinquency still can have a lasting effect on children and a conviction for such acts can result in a juvenile criminal record.

If you find yourself in a situation where your child has been charged with a crime, you need a qualified and well-experienced attorney who will fight for your child with the same energy and seriousness as they would for an adult. If you need assistance with a juvenile case, please contact our firm either online, or by calling (205) 988-5570.

Divorce and Taxes

 

Many people may not think about the effect divorce may have on them in terms of taxes.  However, changes in filing status can have some significant consequences at tax time.  The same is true for claiming dependents and dividing assets.  So, just what kind of effect will your pending divorce, child support and alimony issues have on your bottom line on April 15th this year?

The rules relating to divorced taxpayers don’t usually change from year to year.  Nonetheless, the difficulty comes in determining how divorce will change the way you normally file your taxes.  A concern for many couples facing divorce is how it will affect their tax refund or tax liability.  Here are a few guidelines that may make tax season a little easier. (This information is not meant to substitute for the legal advice of an accountant or tax attorney).

Determining marriage and filing status

If your divorce is finalized between January 1st and April 15th of this year (2014), you will still consider yourself married for purposes of your 2013 taxes. If your divorce was finalized at any time during 2013, even in December, you cannot file as married, even if you were still married during most of the year.

The only other option is to file as “head of household,” which may save you money.  Although this status was meant primarily for single people, those who are in the middle of a divorce may be able to qualify for this status as well.  The requirements are that you lived apart from your spouse for at least the last 6 months of the year and paid over half the costs of maintaining your primary residence.  You must also be able to claim your child (if you have one) as your dependent.

Dividing Marital Assets

One consolation is that you won’t have to pay income taxes on the assets that are transferred to you during your divorce.  But if you are awarded a residence in divorce order or settlement, it won’t be tax-free, because of the capital gains tax.  One factor to remember, if it applies to you, is that if you moved out of the house before the divorce was final, and then received the house as part of the settlement, you will still be able to claim the house as your primary residence.

Determining who can claim the children as dependents

Contrary to what you may think, the fact that you have equal time with the kids doesn’t make them your dependents.  Custody arrangements have become creative and even complicated in some cases.  What makes it worse is that the terms “custody” or “custodial parent” have not adequately been defined for tax purposes. 

The general rule is that if you were awarded sole custody by the court, you can claim the children as dependents.  However, if there is no agreement or order, or if custody is joint, the parent with physical custody the majority of the year wins.  But what if the custody is split equally?  Since both parents cannot claim the child as a dependent at the same time, there are really only two options.  If the couple has more than one child, they can each claim a child.  If there is only one child, the parents can split the dependency. 

The benefits of alimony at tax time

For the person paying alimony, this expense will ultimately lower your tax liability.  Because alimony is what is a called an “above-the-line deduction,” you still get the deduction whether or not you itemize.  The catch is that the payments must be pursuant to an actual agreement or court order and cannot include child support.  Child support payments are always considered tax-neutral, which means those payments do not affect your taxes in any way.

As always, call our office if you have questions about divorce and taxes in Alabama. (866) 345-2528.  

Establishing Paternity in Alabama

If you are wondering why it is important to establish paternity, the answer is simple: establishing paternity provides a child born outside of marriage the same legal rights as one born to parents who are married.  This includes entitlement to benefits through their fathers such as Social Security, veteran’s benefits and rights to inheritance from the father.  Some people also believe it is important to know about their biological family’s culture and medical history.

Who starts the process?

Either parent has the right to initiate proceedings to legally establish paternity.  This legal process can be started at any time until the child attains the age of majority, which in Alabama is nineteen.  In some cases, a mother may need proof of paternity in order to collect child support from the father.  On the other hand, a man may seek a paternity test in order to determine whether he should be legally required to pay support.  Either way, the State of Alabama basically employs three different types of paternity proceedings

Contested, Uncontested or Administrative Proceedings

In most cases, the issue of paternity is either contested or uncontested.  Even when paternity is not disputed, there may be reasons why the parents need a legal determination to be made.  The most common reason is that the parents are not married when the child is born, but both agree on who the biological father is.  The uncontesteded consent process can be accomplished easily by completing an Affidavit of Paternity.  This can be done in the hospital when the child is first born, or at a later time.

In some situations, paternity is contested, but the parties will agree to allow the Department of Human Resources (DHR) to order genetic testing through a purely administrative process.  This way, the court does not have to order genetic testing, but it must still issue the order establishing paternity and child support.

If, however, the mother and alleged father do not agree on paternity (i.e., the man denies paternity), then the decision must be made by the court through a contested judicial process.  If the alleged father refuses to acknowledge paternity or either party will not cooperate with administrative genetic testing, then the only other option is to go to court.

What about paternity testing when the couple is married?

If parents are married when a child is born, usually paternity is not an issue. The law assumes that the husband is the father and the wife is the mother. However, if there is a question as to paternity, this assumption can be overturned. Call our office today if you have further questions on paternity testing in Alabama. (866) 345-2528. 

 

Updating Your Will

Phillip Seymour Hoffman’s Death Emphasizes the Importance of Updating Your Will

Most of us know what a will is – a legal document that sets out your final wishes.  It indicates what you want to happen to your property after your death.  Most of us also know how important it is to have a will, especially if we have a spouse and kids.  But do you realize how crucial it is to keep your will up-to-date?

The problem with Phillip Seymour Hoffman’s Will

The death of actor Phillip Seymour Hoffman, on February 2, 2014, came as a shock to all that knew him.  The tragedy of his premature death at age 46 of an apparent heroin overdose was made that much more tragic for his family upon the reading of his will. 

When Hoffman signed his will in October 2004, he had only one child, a son.  He has had two daughters since the execution of that will, however, none of his children were mentioned in his will.  Instead, he left everything to the children’s mother, Marianne O’Donnell.  One of many problems with that situation is that because O’Donnell and Hoffman were never married, she isn’t eligible for any of the estate tax breaks that are available to spouses, known as the marital deduction.

Hoffman’s estimated net worth at the time of his death was $35 million. Because the marital deduction is not available to O’Donnell, Hoffman’s estate could potentially owe combined estate tax of more than $15.1 million, which would likely be taxed again when O’Donnell dies.

Further, although the will allows O’Donnell the option to turn down the inheritance so that it can be placed in a trust, that trust is only available for Hoffman’s son, the only child mentioned in the will.  This creates what is known as the “after born child” problem in the estate planning arena. Luckily, some states have laws meant to protect children from disinheritance in situations like this.

The importance of updating your will

Drafting a will is not the end of your estate plan–it is also very important to keep it up-to-date. If you have a child after you draft your will, you need to update the will to include that child.  The same is true if you get married or divorced, if the amount of your assets changes significantly, if you move to another state, etc.

If you find need assistance in drafting or updating your will, give us a call.