Month: May 2017

Stepparent Rights in Custody Cases

What Rights Do Stepparents have in Custody Proceedings?

Even though the most common custody disputes involve two divorcing parents, there are other possibilities. Custody disputes can also involve grandparents and in some cases, stepparents. In fact, with blended families becoming more and more common, understanding the rights a stepparent may have can be important.

Are the parties parents or non-parents?

Basically, custody disputes involve either parents or third parties, which are non-parents. The reality is, despite how close a stepparent may become to a child, from a legal standpoint, a stepparent is always classified as a non-parental third party. That means their legal rights are automatically less than those of either parent. But, do stepparents have any rights?

Stepparents may have standing to sue for custody

Third parties, such as grandparents, stepparents and other relatives, even friends of the family, have a right to sue a custodial parent for partial custody or visitation. Typically, this occurs when a stepparent has lived with the child for a significant period of time and developed a very close relationship with the child – often taking on the role of co-parent. So, when a biological parent refuses to allow the stepparent to have any form of custody, the stepparent can sue for partial custody.

Is a stepparent more likely to receive custody or visitation?

Although the law allows stepparents to sue for custody of a minor child, judges typically reject these claims unless the biological parents are deemed unfit and would pose a danger to the child. More often, stepparents are granted visitation with the child. When a court determines that it is in the best interests of the minor child for the stepparent to remain in the child’s life, visitation will be awarded. Judges often weigh the degree of participation in the child’s life, including the length of time the stepparent cared for the child, the depth of emotional attachment that has been established, the degree of financial assistance provided by the stepparent and the harm that the child would suffer if visitation was denied.

If you have questions regarding child custody or any other family law matter, contact us online or by calling Brad J. Latta at (205) 823-1223 for a consultation.

Alimony in Short-Term Marriages

Can Short-Term Spouses Still Get Alimony?

A common misconception is that couples must be married for a certain number of years before either spouse will be entitled to alimony. That is not true, as there is actually no bright line rule to that effect. However, it is rare that a spouse in Alabama is awarded alimony after only being married for a very short period of time. It actually all depends on the specific situation.

Why is alimony awarded to spouses?

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 usually 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. So, what are some examples where alimony was awarded after a short-term marriage?

Courts consider different factors in deciding alimony

According to case law in Alabama, judges can consider many different factors in determining a spouse’s need for alimony in each case. One court has explained 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.” Ex parte Elliott, 782 So. 2d 308 (Ala.2000) (quoting Nowell v. Nowell, 474 So. 2d 1128, 1129 (Ala.Civ.App.1985))

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 family law matter, contact us online or by calling Brad J. Latta at (205) 823-1223 for a consultation.

Adultery and Alimony in Alabama

Does Adultery Affect Alimony in Alabama?

In Alabama, you can get a divorce without having to prove that either spouse was at fault for the separation. In other words, with a “no-fault” divorce, no reason has to be given. Instead, one spouse simply needs to say the marriage is broken and cannot be fixed. Nevertheless, you can also obtain a fault-based divorce in Alabama by demonstrating that one spouse engaged in some marital misconduct, that is, some intentional and wrongful conduct that caused irreparable harm to the marriage. The most common example is adultery. So, many clients ask: how does adultery affect alimony?

First, what constitutes adultery?

There are different definitions of adultery, but it is most commonly understood to occur when a married person has voluntary sexual intercourse with someone other than their legal spouse. In Alabama, adultery alone is sufficient basis for a fault-based divorce. However, when it comes to alimony, although adultery is relevant, its effects are more limited.

How does adultery affect alimony awards in Alabama?

Under Alabama law, judges are expected to order an “equitable” division of property in divorce cases. That usually means that the couple’s property is divided fairly and reasonably. It does not always mean that each spouse will be awarded the same amount of money or property. The same holds true for alimony. Therefore, judges often consider several different factors when determining whether alimony should be awarded. Some of those factors include:

  • the earning capacity of the spouses
  • the spouses’ respective ages and health
  • the length of the marriage
  • the spouses’ wealth, social status, and career, standard of living, and potential to maintain that standard after the divorce
  • the type and value of the property each spouse possess

Judges also typically consider the conduct of each spouse and whether it led to the divorce. This would necessarily include adultery if that adultery caused of the divorce.

Even though judges are supposed to consider all of the relevant factors, they have the discretion to consider adultery when deciding on an award of alimony. Consequently, evidence of adultery can reduce an alimony award for the “guilty” spouse, or increase the award to the “innocent” spouse. However, evidence of adultery does not allow a judge to award a spouse non-marital property, which is property acquired before the marriage.

If you have questions regarding divorce, alimony or any other family law matter, contact us online or by calling Brad J. Latta at (205) 823-1223 for a consultation.