Divison of Assets in Alabama Divorce Cases
When considering divorce in Alabama one of the first things to consider after children and custody is the division of marital assets. Alabama is not a 50/50 state it is court of equity and will seek to make an equitable distribution of marital assets. This is not 50/50 because factors can be considered that may make the equitable distributions more or less than equal.
For instance, if one spouse committed adultery during the marriage, that is a fault based ground to be considered by the court in the division of property. That fact could result in a greater percentage of the marital property going to the unoffending spouse.
The same can be said of marital debt. If any fault based grounds are proven during a divorce then the court may in its discretion assign the offending spouse a greater share of the marital debt while maintaining an equitable division.
- Published in Divorce
Household Items and Fixtures
Divorces are about more than just alimony and child support. A divorce must totally separate the assets of the marriage. Many people pose the question of how do we know what items can be removed from the home and what stays with the home.
This issue revolves around the idea of household goods vs. fixtures attached to the martial home. It’s a seemingly simple issue that can evolve into an impasse ending up requiring a court hearing to settle it. Generally speaking attached fixtures will stay with the home as may some permanent structures that may have been built on the property. What about things in the home such as paintings, lighting fixtures, bathroom fixtures etc. These may seem trivial but many times these items can be very expensive or have some other value to the client.
The best way to approach this issue during a settlement or mediation is to take each item in turn and come to a compromise. For instance if a particular fixture is to be removed by the spouse not keeping the home that spouse may need to replace said fixture with something similar or at least adequate to do the job. If the item is permanently attached and cannot be removed without damage to the home then the value of the item can be used to offset other items or monetary payments in the divorce.
- Published in Divorce
Attorney Advice on Child Custody
Many clients seek out an attorney to give them advice on child custody. All too often this is after the initial divorce of the parties and therefore certain conditions do apply.
Since Alabama no longer recognizes a “tender years” approach to determining custody both parties are presumed equally competent parents and capable of having custody of the children. Thus the “best interest of the child/children” standard is applied. Alabama Courts do not favor a true shared custody arrangement in that it fails to be feasible with school age children and numerous appellate decisions discourage the concept due to it not being in the best interests of the children despite what the parent’s desire.
In the case of modification of custody post-divorce an additional standard is applied. This standard was forged in an actual appellate case and has become known as the McClendon standard or rule. The McClendon standard still requires that the best interest of the child is paramount but also requires that the party seeking to change or modify the custody establish that the benefit of changing custody from one parent to another is so great that it outweighs any detrimental effect that the change in custody would cause to the minor child.
While that may seem to be easy enough to establish; it is not. A mere change in the non-custodial parent’s circumstances for the better will not suffice. Often times the custodial parent must be ineffective in providing for and taking care of the minor child. That coupled with the non-custodial parent’s ability, desire and willingness to take custody may give them the edge needed to cross the huge hurdle that is McClendon.
- Published in Divorce
Can Child Support be Modified?
The answer is yes it can upon a change in either parties income of 10% up or down. If a substantial amount of time has passed a review can be requested to see if a modification is warranted.
A person paying child support cannot make an agreement with the person receiving child support to pay an amount less than what was ordered by the court. Any changes or modifications must be done through the court or they will not be valid and the person paying support will be responsible for any arrearages that came out of the original order.
A modification requires a new court filing fee and an attorney to represent you. Current income figures from both parties must be supplied as well as insurance costs or daycare cost related to the minor children. All this information will be applied to the child support guidelines and a new amount calculated and approved by the court.
- Published in Divorce
When is an award of alimony appropriate?
Alabama does not have a really hard and fast rule concerning alimony except that it can be requested in a divorce case.
There are two types of alimony, alimony in gross and periodic alimony. Alimony in gross is a lump sum payment whereas periodic alimony is not vested and may terminate upon the occurrence of certain contingencies.
Periodic alimony is the most common form and is concerned and based in the law to serve as a tool to help preserve the status quo of the parties. In times gone by this was usually awarded to the wife to assist her in maintaining the lifestyle for which she was accustomed. Today it could go to either party depending on each person’s income and the circumstances of the divorce.
There are considerations that are taken into account when a court is deciding whether or not alimony is appropriate. Some of those are length of marriage, income of the parties and any fault based grounds of the divorce. Of course this is not all that may be considered and other circumstances pertinent to individual cases may be considered.
The award of alimony in any amount is determined by the court and at its discretion. There are no state determined guidelines as there is in child support determinations.
Normally any alimony will terminate upon either the payment of the lump sum amount such as in alimony in gross or upon the death, remarriage, or cohabitation with a member of the opposite sex when dealing with periodic alimony.
- Published in Divorce
Many Contemplating Divorce Ask About Child Support
What does it mean? What does it cover, and how much is it going to be.
Child support is an amount of money paid by each parent for the maintenance and care of their minor child or children until they reach the age of majority, which in Alabama is 19.
Child support is determined to cover the needs of a minor child such as food, clothing, shelter, etc. A part of the calculations will also include costs of child care and medical insurance
In Alabama at least the amount of child support paid is calculated by a set of guidelines that take into account the parties gross monthly income. There is really no good way to estimate what a support amount will be. The numbers just have to be put to paper and the amount calculated out. Basically though, it will nearly always be about one third of the non-custodial parent’s income. Any child support amount awarded is paid by the non-custodial parent to the custodial parent and it is not controlled or related to any visitation order.
- Published in Divorce
Do both parties in a divorce proceeding need an attorney?
The answer is yes if it is going to be a contested divorce and no it’s not necessary, if it is going to be an uncontested divorce.
However, even in an uncontested divorce the attorney may only represent one of the parties not both. Generally an uncontested divorce consists of the parties sitting down and deciding between them how they wish to arrange custody of the children if any and how to divide the marital assets and debts. That list is brought to the attorney of one of the parties who takes the information and creates a settlement agreement to be signed by both parties along with all the other required documents.
One of the required documents is a waiver of a non-represented party. This waiver is signed by the unrepresented party and it explains his or her right to have an attorney and that the initial attorney only represents the spouse who hired him. It further encourages the unrepresented party to seek legal counsel if they feel they need to.
So if all the documents are properly signed and executed then submitted to the court the court must the hold the documents for 30 days after the expiration of the 30 days the Judge will sign the order and the parties are divorced. The divorce will be final after the 42 day appeal time expires.
- Published in Divorce
Alabama Parent Child Relationship Protection Act
In any domestic relations case whether it is divorce or a later change of custody application of the Alabama Parent Child Relationship Protection Act is required.
The Act serves as a method of protection for the non-custodial parent. It requires notice by certified mail from the custodial parent to the non-custodial parent 30 days in advance of any relocation of residence. The notice must detail out among other things the new address, phone number, new school, and proposed date of relocation.
The non-custodial parent is on notice of the intended move upon receipt of the certified mail. He may choose not to object to the move or he may use the notice as cause to file for a change of custody to prevent said move because it would have an adverse impact upon his and his children’s relationship. While the Court cannot prevent the custodial parent from moving at will it can exercise jurisdiction over the minor child and declare that the move is not in the child’s best interests and if custodial parent choose to relocate the child must remain and custody shifted to the non- custodial parent.
- Published in Divorce
Same Sex Divorce in Alabama
Recently the topic of same sex divorce has been brought up. On several occasions I have had opportunities to speak with people inquiring about obtaining a same sex divorce.
Currently in the State of Alabama there is no provision for a same sex marriage. Therefore there is no way to obtain a same sex divorce under the current domestic relations laws pertaining to marriage and divorce.
It presents an interesting question when you have a couple of the same sex who have lived together in what would be a common law marriage except for the fact that they are of the same sex. After years of being together and living as a couple the parties separate and the question becomes who gets what and who is responsible for this debt or that debt.
Same sex couples over time accumulate the same items and property as married couples. They often have a partner who works and one who does not and is dependent on the working party. Or possibly one party becomes disabled during the relationship.
There is no solution or relief to be found under current Alabama domestic relations laws, but there may be a method to pursue. If a party in a same sex marriage chose to pursue any type legal means to protect or obtain items from a failed relationship a contractual theory would be the only route to take. Would this work? It depends heavily on how the relationship began and what were its terms, but if it could be established that from the outset a contract had been entered into then maybe just maybe a reasonable outcome could be reached.
- Published in Divorce
Children Protected in Divorce and Custody Cases
Children are always to be protected as much as possible in a divorce or child custody case. It rarely serves either client well if the minor children are brought into court to testify against a parent.
There are of course exceptions but as a general rule it is not advised. Younger children do not make good witnesses as they want to please both parents and may not understand what is going on and obviously court can be intimidating and terrifying for a child.
Most Judges do not like the idea of children being drawn into a divorce hearing. Children are harmless in a divorce and not at fault. However some instances a minor child’s testimony as to his or her personal desires are allowed. There is no magic age number in Alabama that allows a minor child to choose which parent they would rather live with. Their choice along with their age and maturity are factors to be considered by the Judge in conjunction with many other relevant facts in his determination of what is in the minor child’s best interests.
- Published in Divorce