Author: Brad J. Latta

Dividing Property in Divorce

How Do You Divide Property in a Divorce?

One of the biggest issues in an Alabama divorce is how to divide the property. This is a big issue because of the important financial and legal concerns that come with property division. It is also a very emotional issue because of the sentimental attachment to certain items, or when a spouse may demand certain property out of spite. In some cases, both spouses have financial needs that make the division of property difficult as well. One Alabama divorce case addresses how a court divides property between the spouses.

The Henry divorce – an Alabama case

An Etowah County couple got divorced and the wife wanted to keep her husband’s prized 1994 Chevy Corvette. When the husband would not agree, she argued that he could buy her out for $13,000. The judge ultimately ordered the husband to turn over his car to his ex-wife. The husband appealed the decision and was rewarded.

The difference between separate and marital property

The Alabama Court of Appeals decided that the lower court was incorrect in awarding the car to the wife. The appellate court based its decision on the fact that the car was actually a gift to the husband more than a decade before they were even married. As such, the car was considered separate property, as opposed to marital property. It would therefore be unfair to give the husband’s separate property to his wife simply because they were divorced.

The nature of the property is key to proper division during a divorce

This Alabama case illustrates the important point that not all property in a divorce will be fair game. The division of property during a divorce only applies to assets that are jointly owned by the couple and considered “marital property.” Because the Corvette in the Alabama case was acquired before the marriage and was a gift to only one spouse, it could not be considered marital property. Separate assets are not subject to division in a divorce.

If you have questions regarding the division of property or any other family law matters, contact us online or by calling Brad J. Latta at (205) 507-7659. We are here to help!

Child Custody and Blended Families

Child custody is always a serious issue in divorce cases, but those issues are often complicated when half-siblings in a blended family are involved. What some clients overlook is the powerful argument that can be made not to split up children in the home, even half-siblings.

How child custody issues are typically decided

When a court considers the issue of child custody in a divorce, the decision is based on the well-known standard of the “best interests of the child.” Another principle that is generally followed is to avoid separating siblings unless there is some compelling reason to do otherwise. This issue becomes somewhat complicated, though, when there are half-siblings in the home as well.

Issues that arise with blended families

When there are half-siblings from a prior marriage in the home of a couple seeking a divorce, these blended family situations can have more complicated issues when it comes to custody decisions. In Alabama, however, the courts have held as follows:

When resolving a custody dispute, particularly in these days of blended families, a trial court should not perfunctorily separate half siblings without giving sufficient consideration to the best interests of the children at issue.

AB v. JB, 40 So. 3d 723 (Ala. Civ. App. 2009)

What does this mean for your custody dispute?

A parent who has children in the home from a prior relationship could have a good argument for custody, especially if the children have close relationships with their half-siblings. In other words, in situations where the parents may be on equal footing on the issue of custody, it is possible for the court to determine that the children should stay in the same home as the half-siblings.

If you have questions regarding child custody in blended families or any other family law matters, contact us online or by calling Brad J. Latta at (205) 823-1223.

How to Collect Child Support

How Can I Collect Child Support I am Owed?

Even after a custodial parent has obtained a Child Support Order, it is not uncommon for that parent to need help receiving the child support payments that were ordered. There are a few important steps that need to be taken with any child support collection attempt. Our family law firm can help.

What steps need to be taken to collect child support?

Once the legally enforceable child support order is entered, there are a few steps that should be taken initially in order to collect on that award. First, the non-custodial parent may need to be located, if he or she was not already involved in the court proceedings. Second, paternity may need to be established before the child support order can actually be enforced. Finally, the basic process of collecting payments will begin. Understand that this process will likely be ongoing unless the non-custodial parent is willing to be consistent in making the payments as ordered or they are deducted automatically from their paycheck. Also, changes in the amount of support may be necessary if the financial circumstances of the non-custodial parent change for any reason. Our family law firm can help with any of these issues.

What information does my attorney need to help with collecting child support?

A common question that many clients have is what type of information is necessary for the initial consultation regarding child support collection. The first thing that is required is proof that you are the custodial parent, which can include the child’s birth certificate, proof of guardianship, or proof of custody. Equally important is the court order awarding you, as the custodial parent, the child support payments. Finally, any evidence of paternity which is necessary to enforce the child support award against a specific individual should be brought to the consultation.

If you have questions regarding child support, collection of support payments, or any other family issues, contact attorney Brad J. Latta either online, or by calling us at (205

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.

 

Five Myths About Child Custody in Alabama

5 Common Myths about Child Custody Issues
Divorce is almost always a stressful situation for everyone involved, especially children. When it comes to child custody, the likelihood of a battle is pretty high. The reason? There are too many misconceptions about the laws regarding child custody in Alabama. Here, we will dispel the five most common myths regarding child custody.
No. 1 – The mother will most often be awarded primary custody
This simply is not true in Alabama. In fact, Alabama’s child custody laws do not favor either parent. Instead, determining what is best for the child is the primary deciding factor. In reality, that usually means attempting to maintain a strong relationship with both parents, if at all possible.
No. 2 – Child Custody depends on the needs of the parents
As stated above, it is the child’s well-being that is the driving force behind every child custody determination. The needs of the parents do not factor into the equation.
No. 3 – Sole custody is the most common arrangement
In reality, sole custody is not the most common result in most cases. Sole custody, or full custody, means that only one parent will have legal and physical custody, while the other parent would have limited contact with the child. This is actually very rare. Nevertheless, in situations where sole custody is warranted, the non-custodial parent would most likely still have some visitation rights. In most cases, joint custody is awarded to both parents so that they can both continue to raise the children together.
No. 4 – When there is joint custody, there will be no child support award
While the child custody arrangement may impact the child support payments ordered by the court, there are also many other factors that are considered as well. Each parent’s income is one of the most important factors. Regardless of whether both parents have equal custody, there may still be a need to order child support payments for a parent who needs them.
No. 5 – A child custody arrangement ordered by the court cannot be modified
Possibly one of the most common reasons child custody cases turn into a huge battle is the belief that the arrangement ordered by the court is absolutely permanent. That is not necessarily true because, as the courts recognize, circumstances often change. For that reason, child custody decisions are not set in stone.
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.

What Can Child Support Be Used For?

What Can I Use Child Support for in Alabama?

There are many misconceptions when it comes to what child support payments can be used for. Most commonly, people believe that child support can only be used for the so-called “bare necessities.” To most people, that means only food, clothing, and shelter. But in Alabama, child support covers a wider range of expenses, including education expenses, entertainment, health care and extracurricular activities.

Guidelines are established in every state

All 50 states have created some form of child support guidelines which help the courts and attorneys to determine the appropriate amount of child support to be awarded in each case. Those guidelines require courts to consider a wide variety of factors, including the income of each parent, the ability to pay and the financial needs of the child. The goal is to provide the amount of support necessary for the child to maintain his or her current standard of living as much as possible. It is important to remember that child support laws are not uniform from one state to the next.

Parents are not required to prove how child support payments are used

In Alabama, as in many other states, parents are not required prove how the child support payments they receive are being used. The only time that becomes an issue is when there are allegations that a child’s basic needs are not being met. Otherwise, the courts will assume that the custodial parent is taking care of the child’s necessary expenses and there is no need to monitor the parent’s spending habits.

Examples of what child support should cover

It goes without saying that children need food, clothing, and a safe and comfortable place to live. Children also need basic medical care, which is usually provided through some form of health insurance coverage for their child. Any uncovered medical expenses must also be covered. Even for children in public school, there are certain fees for school-related activities. Child care as well as extracurricular activities like summer camp and sports activities should also be covered.

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

Alabama Adoption License Requirements

Alabama’s Adoption Licensing Requirements

If you are considering becoming adoptive parents, the process can be a bit lengthy, so you need to be persistent. Typically, it takes an average of four to twelve months to complete all of the necessary steps to become licensed to adopt. The process generally includes submitting the application, participating in a home study and attending training. Parts of the process may be overwhelming and particularly invasive, but it is important to remember that everyone involved has the same goal, to ensure the safety and well-being of the children.

Basic requirements for an adoption license

Anyone applying for an adoption license must be 19 or older, with a stable family, and reasonably good health. At least one parent must be a United States citizen. There must be a regular source of income sufficient to meet the family’s financial needs.

Background checks are required without exception, including criminal background checks for all household members 19 and older, and clearance of State Central Registry on Child Abuse and Neglect for all household members 19 and older as well. Character references will be required, as well as successful completion of a home safety inspection. A home study and family assessment, along with training in First Aid and CPR for adults, infants, and children is also required. If the adoptive parent is married, the applicants must be married for at least three years. However, being married is not required.

Certain exceptions may be allowed

The Alabama State Office of Adoption may approve a policy exception to the above qualifications if it appears the applicant has considerable attributes for parenting children with special needs and is willing to accept such children. Requests for exception can be made to the Office of Permanency before proceeding with the application.

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

Child Support Modification

Child Support Modification in Alabama
In Alabama, a child support order can be modified pursuant to the same law that provides for an initial child support determination. The rule requires as follows:
A party seeking a modification of child support must plead and prove that there has occurred a material change in circumstances that is substantial and continuing since the last order of child support.
According to the law, there is a rebuttable presumption that child support should be modified any time there is more than a ten percent (10%) difference in the existing award and the amount established by the guidelines. The exception is when there has been no change in circumstances that causes the difference.

Understanding the 10% variation rule
Trial courts have the authority to use their discretion in modifying a child support award even in cases where the 10% variation does not exist; a common example is when there is a “material change in circumstances that is substantial and continuing.” On the other hand, the court also has the discretion to deny a modification even when there is a (10%) variation if there is a finding that the application of the guidelines would be manifestly unjust or inequitable.

Modification works both ways
Both sides of a child support award have the ability to request a modification. That means either the parent paying child support or the custodial parent receiving child support can petition the court for modification. Historically speaking, there are certain events that have been determined not to warrant a change in a child support award, including remarriage or divorce from a different spouse and mere speculation that a parent is earning or not earning overtime. Likewise, evidence that a non-custodial parent has filed bankruptcy, or suffered a reduction income due to circumstances beyond that parent’s control, are often seen as sufficient to consider modification.

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.