Category Archives: Divorce

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.… Read the rest

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 … Read the rest

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 … Read the rest

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 … Read the rest

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 … Read the rest

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 … Read the rest

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 … Read the rest

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 … Read the rest

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 … Read the rest

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 … Read the rest