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Posts Tagged ‘Divorce’

New Year – New Status. Divorce Advice for 2016.

Whether you have been in a troubled marriage or currently separated, 2016 can be the year you get to change your status.  With the upcoming elections, changes are in the air.  Individuals normally do not like change and it is difficult to embrace changes in your marital status.  However with the feel of change in the air, it could be a good time to take that first step forward to changing your personal status. Change has been happening all around us and we comtemplate more changes to come.  

In the previous year, The Supreme Court of the United States made it clear that all states have to recognize same-sex marriages giving civil rights and liberties to every individual. I have personally seen individuals who, for the first time, have had their marriages recognized in the state of Alabama.  It's been an exciting past year.  I have had clients that were in the need of a same-sex divorce and with the Supreme Court ruling were able to get that relief without leaving their home state of Alabama.  

With the changes in healthcare laws, I've had clients who were able to secure their own health care coverage which assisted them in finalizing their divorces.  Some individuals were separated from their spouses with pre-existing conditions that inhibited them from finalizing their divorce.  Once divorced they knew that their coverage would end and getting new coverage may exclude their conditions.  Now with changes in health care, they are free to enroll personally without the denial of their pre-existing conditions.  It has enabled them to be self-sufficient. 

Now with 2016 on the rise, individuals have contacted our firm that are in need of legal asistance to start a new year with new goals.  Divorce can be very challenging but with the right legal team, you can get solutions that are best for you.  In some ways it is easier to make personal changes while your environment is also changing.  2016 can be the year you reach your personal goals.  Let us assist you in any of your family law issues.  We have a dedicated team of attorneys and professionals waiting to help you. 

Call us at (205) 623-1001.

We have information on our website that may answer your questions.  Our blog covers a wide variety of legal topics. See http://bit.ly/1TOm2yM
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Divorce and Mental Health Issues.

There are couples who have a spouse with mental health issues. If your spouse has a mental health issue and ignores medical advice, it may be best to have a no contact order with the children until steps can be taken to make them safe and secure. It is important to weigh the benefits of having a no contact order against the resulting backlash of the parent with no contact. If your children or you are truly in danger due to prescription drug misuse or abuse and mental health issues, there are remedies that can be provided for your protection. With that said, all clients must realize the the law provides a remedy but the proactive nature of the law can only enforced by an Order and law enforcement agencies. Just because you have received a no contact order does not mean that it will prevent the other parent from attempting to harass or harm you. It means you have the power to enforce the Order of the court with the appropriate officials. While married there is no preference for either parent for custody. So a temporary order giving one parent custody over the other is required to enforce decisions to be made over the children. This protection is provided by the court. One major piece of advice is to consult an attorney who regularly practices in divorce and the county in which you seek to get a no contact order. This will ensure that you are able to get a result in a timely fashion. Following the advice of a family law or divorce attorney who routinely practices in your county, will be the best course of action in any divorce case. However, in an emergency situation it can save lives.  Emergency orders are only temporary and a court will set them for a full hearing upon any motion of any party.  They are intended to only give "temporary" protection and last until a judge can hear from both sides.  It is vital to know the nature and extent of the protection they can provide.  Every person has a constitutional right to have their day in court and a 6th Amendment right to confront their accuser.  So the extent of a temporary order received during an emergency is subject to being fully litigated at any request of any party.  With that said, emergency orders are necessary and can provide protection until more can be understood about the situation.  If you are in need of an emergency order, please do not hesitate to call us (205) 623-1001.  We are always here for those parents who find themselves in an emergency situation.

College Support for Children Following Divorce

College support from the non-custodial parent has been a hot topic this year in the legal field.  Post minority support is another way to say that the non-custodial parent needs to pay for some of the cost of tuitition, room, board, books, etc that a child attending college would experience.   Many will say that it has always puzzled them that parents who stay married cannot be forced to pay for college expenses while non-married, divorced couples can be forced to do so under our current laws in Alabama.  Ex Parte Bayliss governs when college support petitions must be filed and how a parent can be ordered to pay their share of the expenses.  Basically, any petitions to modify for college support must be filed prior to the child reaching the age of 19 or it is forever barred.  Of course, some couples reserve the issue of college expenses in their divorce decree.  If this is done, there needs to be a deadline of an age that a petition must be filed for each child.  However, this is often overlooked and a simple reservation for the expense is incorporated into the decree.

There is new case Christopher v. Christopher, 2012 Ala. Civ. App. Lexis 357 that was decided by the Alabama Court of Civil Appeals on December 21, 2012.  It, of course, has not been presented to every higher court as of yet but is expected that it might well be done.  This case raises the issue that it may be unconstitutional to require non-custodial parents to be forced to participate in paying for college expenses.  This case says, in part, that Ex Parte Bayliss, which has been around since 1989, may discriminate against children of non-divorced parents as a class.  Discrimination across a “class of people” is unconstitutional.  Therefore, whether the non-custodial parent may be forced to pay college expenses may be short-lived should this case reach our Supreme Court and overturn Ex Parte Bayliss.  In short, there were several concurring opinions written by the justices who decided Christopher v. Christopher and one in which it urged the Supreme Court to reconsider its decision in Ex Parte Bayliss.  Due to the other arguments presented in the Christopher case and the unconstitutional argument, it looks like the “tide” is changing very quickly.

For some parents, this is good news if they do not have the means to support a child through college and the expense of hiring an attorney to prove that they have an inability to pay can be rather costly as well.   For other parents, this may be bad news in that they have an ex-spouse who has the means and financial condition to support the child through college but will no longer be forced to do so. 

This author believes this case comes on the heels of the economic climate in that it is becoming ever persistent that a college degree may not add to one’s income potential the way that it used to do so.  The high cost of  a college degree has recently been balanced by the ability of a non-degree holder’s income potential versus the cost of paying back student loans.  This is especially true in the legal field with the saturation of lawyers being so high and the lack of hiring by law firms due to the economic climate.  Law students are faced with student loans in excess of $150,000 to $200,000 with no prospect of employment.  I am sure the same can be said for other professional markets as well.  Employers are getting more productivity out of the employees they currently have and not hiring others to replace positions that used to be commonplace.  It is definitely an employer’s market.  Every out-of-work college graduate is learning new and innovative ways to look attractive or get technicial skills that will enable them to work even if it means not using the college degree they earned. 

It seems that only those parents who can both agree on what portion of college expenses each will pay at the outset of a divorce will be the ones who will send their children to college on their “dime.”  Of course, there is always the ability of each student to get grants, scholarships, internships, and student loans. 

Keeping an eye on family law trends is one of my favorite past times.  I enjoy being able to advise my clients on the most up-to-date laws that affect their unique situations.  Call me if you need divorce or post divorce help (205) 623-1001.  We are here to answer your questions.

Alabama Divorce Jurisdiction

Alabama is like most states in that if both parties are bona fide residents of the State of Alabama; then Alabama has jurisdiction to divorce them.  Alabama also has jurisdiction to dispose of all their property where ever it might be and grant a full range of remedies.

To be a bona fide resident of Alabama one must show that this is the place they intend to live and return to each time they travel.  A factual determination must be made to decide if a party is a bona fide resident.  It hinges on the concept of domicile.  A person may be a bona fide resident after just one day in Alabama as long as they have the intent to remain in Alabama.  It is sort of a state of mind.  When deciding whether a person is a bona fide reside your lawyer may look at several factors but none of them are a deciding factor alone.  Some factors to consider are:  1) where are the bank accounts; 2) where do they receive mail; 3) where do they store their stuff; and 4) where do they have a driver’s licence from.  These factors are helpful but neither one can decide the ultimate decision alone. 

For divorce purposes, at least one party must be a bona fide resident for not less than 6 months for Alabama to take jurisdiction over the marriage and grant a divorce.  In the state of Alabama if one party files for a divorce and is a bona fide resident, a divorce will be granted.

After deciding that Alabama has jurisdiction over a marriage, then venue must be decided.  Venue is what county the divorce will be filed in and carried out in.  Venue is proper in either: 1) the county where the defendant resides (and when in doubt, file it there); 2) in the county where the couple last resided as husband and wife.  This is important in that venue can be agreed to by both parties and filed anywhere the parties want to submit to jurisdiction if done by agreement.  If it is a contested divorce, the proper filing venue would only be either where the defendant resides or where the parties last resided as husband and wife.  If the filing party has moved out of the county and never lived in their current county as husband and wife, the current county whre they reside would not be proper venue. Only the county were the defendant resides or where they last lived as husband and wife would be proper.

Obtaining jurisdiction over the parties and marriage is the first step in any divorce process.  It is generally an easy step since it revolves around only two questions.  However, if it cannot be easily resolved the case may be transferred to the proper jurisdiction or dismissed and refiled.  Call our attorneys today if you have questions about where to file your divorce action.  (205) 623-1001

Alimony and Divorce in Alabama

Alimony in Alabama

In Alabama a spouse may receive alimony after divorce.  There are two forms and many areas to consider when deiciding what type of alimony is appropriate. 

Alimony comes in two forms:

  1. Alimony in gross
  2. Periodic Alimony

 

A major difference in the types of alimony is that Alimony in Gross is a non-taxable event.  The receipient does not have to pay tax on it as income and the paying spouse cannot use it as a tax deduction.  Whereas Periodic Alimony is a taxable event.  The recipient has to pay tax on it as income and the paying spouse can deduct it from their taxable income.  Also, Alimony in Gross is a non-modifiable event.  Once it is set it must be paid as ordered.  Some people refer to it as a lump sum property settlement which it can be compared to that since it is a non-modifiable and non-taxable event.

Alimony can be awarded through a pendente lite hearing at the beginning of a divorce case and adjusted or terminated at the final hearing.  A pendente lite hearing is a hearing that can be held at the beginning of the case to give temporary relief to the party that needs income to get on “their feet” while the divorce is pending. 

Alimony in Gross:  When Alimony is awarded as “alimony in gross” it is for a specific reason.  It is in some way a compensation for marital rights.  The idea is that marriage itself has value and it continues to build in value through the years.  If the judge feels that one side has gotten “the short end of the stick”, they may award alimony in gross.  It is a definite “lump sum” amount to be paid during a definite period. 

Periodic Alimony: This form of alimony is considered support for a spouse who cannot maintain the status quo without assistance from the other spouse.  The status quo comes out of a long line of cases that directs the court to “insofar as possible” attempt to maintain the standard of living of both parties that they enjoyed during the marriage. 

Periodic Alimony terminates at the happening of specific events such as:

  1. Death of either party;
  2. Remarriage by the recipient of the alimony payments; or
  3. Open cohabitation of the receipient with members of the opposite sex. 

Characteristics of Periodic Alimony are:

  1. No definite end – could be paid for the rest of your life absent a termination event mentioned above occurring;
  2. No set sum – no ceiling to the amount to be paid.  The amount is configured on the “shortfall” or deficit of the party requiring support.
  3. In some cases, no amount of time required to be married.

To prove that Periodic Alimony should be awarded:

  1. Your attorney must prove need by the party requiring support.  This is the threshold burden that must be proven before you may proceed; and
  2. That the other party has the ability to pay the money to meet the need proven

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