Alabama Divorce & Family Law Attorney Blog

After Your Alabama Divorce, Divide Your Estate Plans Too

Posted in Alabama Divorce

After matters of child support, child custody, spousal support and division of marital property and debt have been settled, it’s understandable newly-divorced couples just want to put it all behind them. However, they may be in for an unpleasant surprise if they don’t attend to estate matters immediately following the divorce. yellowpen

While the divorce order itself can end or establish certain payments or obligations, estate planning could be an important next step. Failure to do this could potentially result in certain benefits or assets being funneled unintentionally to your ex-spouse or even his or her family if you die.

Take for example a recent case out of New York, wherein the family of a woman who died five years ago at the age of 43 is locked in a nasty battle for her $200,000 home with her former in-laws. Although she and her husband divorced three years before her death – and the home was clearly hers to keep in the divorce settlement – an existing will is central to the dispute.

A will executed ten years before her death named her then-husband as the beneficiary of her property should she die. That property included a home that had been passed down in her family for generations. The divorce proceeding cut her husband automatically out of the will (though such documents should be updated anyway just for clarity’s sake). However, her father-in-law, who was named as a secondary beneficiary, asserts that under the terms of that will, he is the beneficiary of the home.

The decedent’s family insists she drew up a new will after separating from her husband, but thus far, no one has been able to locate or produce that newer documented. An appellate court ruled the will should be upheld, but one last appeal is slated to go before the state’s highest court next month.

Drafting a new will isn’t the only thing to consider. New divorcees should also update all proxies, if they haven’t already. Updating one’s health-care proxies and health care powers of attorney can be done even while the divorce is pending – and in fact should be done, unless you want your soon-to-be ex making important financial and health care decisions for you in the event you are unable to do so.

Another important update to make is that of beneficiary designations. Usually, retirement, brokerage, insurance and bank accounts are divvied up in a divorce. However, if the named beneficiary isn’t updated, it’s possible the ex could still collect. Take for example the 2013 U.S. Supreme Court case in which justices sided with an ex-wife who collected $125,000 on a life insurance policy after he died. They had been divorced for years at the time, and he had actually remarried. However, he failed to update the policy beneficiary after the divorce, so the beneficiary as listed was honored.

It’s important to make sure your divorce attorney is aware of all such accounts. Note too that if a divorce settlement grants a portion of an ex-spouse’s retirement account, claimant may additionally need to request a Qualified Domestic Relations Order to ensure the divorce settlement terms are upheld.

Additional Resources:

After Divorce, Separate Your Estate Plans Too, Feb. 20, 2015, By Liz Moyer, The Wall Street Journal

More Blog Entries:

McDaniel v. McDaniel – High-Conflict Divorce Weighed by Alabama Civil Appeals Court, Feb. 15, 2015, Birmingham Divorce Attorney Blog

Report: Facebook Cited in One-Third of All Divorces

Posted in Alabama Divorce

The whole idea of Facebook and other social media websites is to bring folks together. smartphone

However, it seems with increasing frequency, social networking is serving to drive people apart – specifically, married couples.

According to a new British survey, Facebook has been linked to 33 percent of all divorces, which is an increase from a 2009 study indicating the networking site was central to 1-in-5 divorce filings. Another study, conducted in 2013 by researchers with the University of Missouri, found people who use the site excessively are more likely to experience conflict with their romantic partners, and that conflict can often lead to negative outcomes, such as break-up and divorce.

Authors of the latest research opine Facebook serves as a conduit for people who are connecting with exes or to meet new potential partners. It may simply be a source of suspicion, particularly if one spouse is overly-jealous.

Our Birmingham divorce attorneys don’t lay the blame solely on evolving technology. Marriages were breaking up long before social media existed. The fact that Facebook is often noted in divorce filings is not so much a condemnation of the platform as simply indicative of the way we all currently communicate and connect.

Alabama is a no-fault divorce state, so that means whether your spouse is spending a greater amount of time online or involved in a virtual affair may not necessarily be relevant to the court in your filing. No-fault divorce means spouses aren’t required to establish grounds for divorce, such as adultery, abandonment, alcoholism, abuse, etc. In fact, the vast majority of divorce cases in Alabama are granted on no-fault grounds.

Still, there are ways in which divorce lawyers might find the contents of a client’s or soon-to-be-ex’s social media account valuable.

For example, Alabama family courts allow for equitable distribution of marital property. Both spouses are required to report all relevant property. Not everyone does. But sometimes, there can be evidence in the form of wall posts or photographs that might indicate one party is not fully disclosing all relevant financial assets or debts. That could impact the court’s decision regarding how much each party should receive.

Such evidence can also be valuable in child custody and support proceedings. Parents who post photographs of themselves behaving badly may have a difficult time proving to the court they are a fit parent with a stable home. Such posts can also indicate if a parent is fully adhering to the parenting plan. For example, courts can sometimes limit a child’s contact with parent’s new boyfriend or girlfriend, but posted photographs may show they aren’t obeying that order.

It’s worth noting that just because a person blocks or “unfriends” an ex does not mean the settings are private. For one thing, couples tend to have many mutual friends, and that can become a portal through which one can obtain information about the other. Beyond that, privacy settings are not nearly as tight as some people like to believe. Spouses may be unwittingly providing a ton of information to the other side about a variety of aspects relevant to a pending case.

Courts are increasingly broadening the circumstances under which such evidence is allowed to be introduced and considered. In some cases, judges will allow one side to engage in digital forensics, which can help uncover call logs, text messages and e-mails, calendar entries, videos and photos, pornography site visits, financial transfers and purchases and other seemingly private information.

So regardless of whether Facebook precipitated your split, it may ultimately help further your divorce case.

Additional Resources:

Facebook cited in a third of all divorce cases, Jan. 21, 2015, By Cheryl K. Chumley, The Washington Times

More Blog Entries:

Parisi v. Parisi: Alimony Payment and Contempt of Court, Jan. 26, 2015, Birmingham Divorce Attorney Blog

Ray v. Ray – Alabama Civil Appeals Court Reverses Alimony Finding

Posted in Alabama Alimony

Alimony payments are those made by one divorced spouse to another either during the divorce process or after the divorce. It’s sometimes referred to as a “spousal allowance” or “spousal maintenance.” money2

Where once alimony was the standard in divorce proceedings, with the husband required to pay the wife, that has changed. Women have not only increasingly entered the work force but in some cases have incomes that far exceed their spouses. Securing alimony payments requires very specific findings, and is usually temporary, applied to long-time married couples and usually limited to cases where one spouse earns significantly less than the other.

Recently, the Alabama Court of Civil Appeals granted reversal of a trial court’s order denying alimony, except for a $5,700 lump sum payment awarded to wife while divorce was pending.

The case, Ray v. Ray, involved disputed testimony at almost every turn. However, it is not the job of the appellate court to sort through the veracity of the facts. Rather, it determines fairness as a matter of law. In this case, regardless of the matters disputed, the trial court’s finding was unfair, considering husband was the sole earner during the 25-year marriage and the trial court awarded all husband’s retirement accounts to him and denied her any spousal support, despite her earning less than half of what he does. Further, although wife did not appeal on the basis of marital property division, the appellate court noted such a finding has to be weighed in light of whether to award alimony, and it did not appear the trial court did so.

According to court records, husband and wife were married in the 1980s and had two children, both of whom had reached adulthood by the time they sought a divorce. Virtually every fact in the case was disputed.

Wife alleged during their marriage, husband refused to allow her to work, even after the children grew older. He also refused to allow her to return to college, as he feared she would only attend to “meet guys.” She alleged he was physically and verbally abusive to her, had extramarital affairs (including one with his sister) and that he used crack-cocaine and would leave the family for weeks or months at a time on binges, during which he would not pay the bills and left her without a vehicle.

Husband, meanwhile, alleged it was the wife who was abusive, and in fact she had been arrested and convicted for one such incident. He argued the loss of his eye was due to her hitting him with a frying pan handle, though she argued it occurred when he fell down a flight of stairs, drunk, while she was not home. He insisted he wanted his wife to work, but that she refused. He stated he had previously struggled with substance abuse, but it was no longer an issue.

Trial court made various findings of fact regarding these allegations, but ultimately said both parties should keep their respective retirement accounts and the husband should pay a lump sum support payment, with no continuing Alabama spousal support. There was no marital home or other real property to divide.

The appellate court reversed and remanded, finding regardless of the disputed facts, the husband was the sole earner for 25 years of their union. That put wife at a unique financial disadvantage, and indeed, she only earned half of what he did and it was not enough to cover her expenses. Additionally,  there was no evidence the wife even had her own retirement account, despite the court’s order. Meanwhile, husband was earning twice as much and his income was $900 in excess of his expenses – $1,500 in excess when subtracting for a vehicle and insurance he paid for his sister, but which he did not use or drive.

Based on this alone, the appellate court determined the trial court needed to reconsider its allocation of money due each party.

Additional Resources:

Ray v. Ray, Feb. 20, 2015, Alabama Court of Civil Appeals

More Blog Entries:

C.E. v. M.G. – Alabama Civil Court Reviews Custody Dispute With Abuse Allegations, Feb. 21, 2015, Birmingham Divorce Lawyer Blog

C.E. v. M.G. – Alabama Civil Court Reviews Custody Dispute With Abuse Allegations

Posted in Alabama Child Custody & Visitation

There is perhaps no more serious allegation between parents warring for child custody than abuse of that child. It’s one in which the courts take very seriously, and the top priority is always the best interests of the child.abuse

In the recent case of C.E. v. M.G., the Alabama Court of Civil Appeals reviewed the petition filed by a child’s mother seeking a writ of mandamus compelling the lower court to vacate an earlier judgment awarding temporary custody of child to father.

Central to the juvenile court’s findings were allegations of abuse and neglect made by father against mother.

The appellate court affirmed in part, reversed in part.

Back in 2008, father’s paternity was formally established and, in the course of that action, court designated mother as primary physical custodian and ordered father to pay child support. This arrangement continued for nearly six years, until father filed a petition alleging child was dependent because the mother and her husband were either abusing the child or using excessive corporal punishment, to the point father observed marks and welts on child’s body. He sought emergency custody.

After an initial jurisdictional transfer, the juvenile court entered a temporary custody order placing child with father on emergency basis. Court also scheduled a hearing for the following day and appointed a guardian ad litem to represent the child.

On hearing day, mother’s attorney was running late due to a scheduling conflict. After waiting a period of time, court proceeded to hear both sides of the case without mother’s attorney present.

After hearing evidence from both parties, court awarded father physical custody pending a final hearing and ordered stepfather not to discipline the child in any form. A final hearing was scheduled for one month later.

In the interim, mother filed her writ of mandamus, which appellate court chose to treat as an appeal. She asserted father’s pleadings were not verified, the court lacked subject matter jurisdiction and the court violated her due process rights because the hearing was conducted without her attorney and she as given no notice the court would address child’s dependency.

Upon review, appellate court found father’s allegations fell well within the subject matter jurisdiction of the juvenile court, which has the authority to enter temporary custody on an emergency basis when the safety of a child is at issue. Further, appellate court rejected mother’s assertion that father failed to verify his assertions with written and verbal evidence.

With regard to the lower court’s alleged failure to provide proper notice of the dependency hearing, appellate justices did find trial court acted improperly. However, it rejected mother’s argument of a constitutional violation for holding the hearing absent her attorney. Although mother had a right to an attorney and was represented by one, the court acted within its discretion by allowing attorney reasonable time to appear and continuing with the hearing when she failed to appear.

Accordingly, court affirmed the emergency custody order, but remanded with regard to the dependency finding, ordering trial court to grant proper notice to mother before proceeding with a final hearing.

Because an allegation of child abuse can have swift and severe consequences – as this case reveals – it’s imperative for those involved to consult with an experienced and reliable family law attorney.

Additional Resources:

C.E. v. M.G., Jan. 16, 2015, Alabama Court of Civil Appeals

More Blog Entries:

Domestic Violence in Alabama: “Enough is Enough”, Nov. 22, 2014, Birmingham Family Law Attorney Blog

McDaniel v. McDaniel – High-Conflict Divorce Weighed by Alabama Civil Appeals Court

Posted in Alabama Divorce

Few divorces are totally amicable. After all, couples who are separating tend to have good reason for it.

But when divorces are high-conflict, disputes can be drawn-out, emotionally exhausting and expensive. boxingglove

This is why we tend to advocate when possible for mediated resolutions later formalized by court order. Your attorney still advocates for you during this process. It’s just not all heard in court before a judge.

However, we do recognize there are some cases in which that level of cooperation is virtually impossible. Our clients know we are dedicated to fighting for their best interests every step of the way.

In the recent case of McDaniel v. McDaniel, the Alabama Court of Civil Appeals took on a highly contentious divorce case appealed from the Cherokee Circuit Court. As our Birmingham divorce attorneys understand it, the couple was married for 15 years and had no children together.

According to court records, wife filed for divorce in 2013, alleging, among other things, her husband had committed adultery. (Alabama is a no-fault state, meaning no such reasoning is required in order to secure a divorce, though sometimes, such allegations are still made.) The very next day, trial court entered an order barring both parties from harassing one another and forbidding them to dispose of any marital property. Soon after, the court also entered an order spelling out how both parties were to cover expenses related to the marital home while divorce action was pending. Both later filed motions seeking to hold the other in contempt of court.

In the final divorce judgment, trial court issued a plan for division of property, denied wife’s request for alimony and all other relief she’d requested. The court decided wife’s testimony was not credible and further, her actions while divorce was pending constituted a “significant fraud.”

Court denied wife’s post-judgment motion for reconsideration and wife appealed. She argued trial court erred in the way it divided marital property and by failing to award spousal support.

Records indicate wife was disabled as a result of a work-related accident, and she’d received a workers’ compensation settlement of $120,000 – money she reportedly invested into the construction of the marital home. It’s undisputed wife is totally disabled and receives $1,100 monthly Social Security Disability Insurance benefits. Out of that is subtracted nearly $200 monthly for medications.

Marital home was initially valued at $320,000 as a new construction, but when the market bottomed-out, it lost nearly $80,000 in value. Both parties were trying to sell the home at the time of divorce.

Husband worked as a plumber throughout the marriage, and three years prior to the split, had started his own business. He was reportedly vague in answering questions about his income, indicating the poor economy meant his monthly income fluctuated. He disputed wife’s assertions he was often paid in cash and failed to report all income to government for tax purposes. Over the course of the three years he owned his business, he reported annual income ranging from $7,100 to negative-$79. He failed to respond to requests for banking records, and wife presented evidence that the same year he alleged losing income, he made more than $7,000 deposits in a single month, and a total of $60,000 for the year.

Husband conceded an affair four years prior to divorce, but stated he and his wife had reconciled. However, he did admit he had begun once again talking to his ex-girlfriend prior to divorce and he moved in with her immediately after the separation.

Husband alleged several expensive pieces of his gun collection had gone missing since he left the marital home, as well as a  personal recreational vehicle and other hunting equipment – which he posited had a total value of more than $55,000. Wife denied she had taken or removed anything belonging to husband.

Trial court ordered divorce on incompatibility grounds, and ordered wife to receive 33 percent of home sale profits after satisfaction of mortgage, and husband to receive the remaining amount. Husband was further awarded 100 percent interest in his business and wife’s request for alimony was denied.

On appeal, wife disputed the rejection of alimony and division of property/debts, alleging it was not equitable. (Equitable does not mean “equal” but rather fair given the circumstances.)

While the appellate court noted the apparent inequitable findings, it noted the trial court’s finding of wife’s alleged fraud, which trial court indicated “weighed heavily” against her requests for a greater portion of property and alimony. Trial court was well within its discretion to do so, appellate court ruled. Specifically, the trial court found wife hid assets. This worked against her in the division of property.

Our Birmingham divorce attorneys know that separations can be acrimonious, but attempts to hide information or assets from the court will almost always backfire. If you are concerned about the way in which the court will divide assets and divvy up debts, consult with an experienced lawyer to learn more about how you might protect your interests.

Additional Resources:

McDaniel v. McDaniel, Jan. 9, 2015, Alabama Court of Civil Appeals

More Blog Entries:

Birmingham Divorce Challenges for Couples Over 50, Nov. 11, 2014, Birmingham Divorce Attorney Blog

Schwartz v. Schwartz – Modification of Support Requires Material Change in Circumstance

Posted in Alabama Child Support

When it comes to the financial support of children, courts in Alabama do not consider it a fluid matter. Once support orders are set, they are difficult to change. Exceptions and requests for changes are carefully considered only when there has been a material change in circumstance. motherdaughter

Per Alabama Rules of Judicial Administration, Rule 32, Child-support guidelines, a party seeking modification of a previously-set child support order must plead and prove a material change in circumstances, which is shown to be both substantial and continuing since the last order of support.

Courts may have varying interpretations of what constitutes a “material change,” but generally, such changes might include:

  • One parent’s loss or change of a job, resulting in a substantial loss of income
  • One parent’s promotion or job change with significant raise
  • Changes in costs for health care/insurance coverage
  • Changes in costs for child care
  • One parent’s move out-of-state, resulting in higher parenting time costs

It’s worth noting if a substantial change is the result of one parent’s intentional actions (i.e., quitting a job or making an unnecessary move), family courts do not look favorably on such actions. The judge may in these cases consider one’s potential income, rather than actual income, in reaching a conclusion.

Birmingham child support attorneys want to stress too the only way you can obtain a formal child support modification is through a declaration from the court. Even if you and the other parent agree to an alteration in the support plan, any modification not formalized in court can be later challenged.

In the recent case of Schwartz v. Schwartz, the Nebraska Supreme Court was tasked with weighing whether a trial court improperly granted modification to a father asserting substantial change in mother’s income, while also granting her a credit for health insurance premiums she paid. The court affirmed in part, reversed in part.

According to court records, the pair divorced in 2001 and the court granted custody of their minor child to father in 2006, at that time ordering mother to pay child support. As part of that order, father was ordered to maintain child’s health insurance. Mother was ordered to pay any non-covered health care costs in excess of $480 annually. In 2011, mother’s monthly support obligation was reduced to $250 monthly.

Two years later, father requested a child support modification, asserting mother’s income had increased by more than 10 percent.

At trial, father provided evidence the child was covered under his health insurance policy. However, mother also provided proof the child was covered under her employer health insurance policy. Trial court agreed there had been a material change in income, increased her monthly obligation to $300, but deducted costs she paid for her subsequent child and gave her a credit for health insurance premiums paid, bringing her total monthly contributions for child to $293.

On review, the state high court found trial judge had not abused discretion in granting mother a deduction for her subsequent child, but did abuse its discretion in giving mother a credit for health insurance premiums. Although mother argued it was in child’s best interest to have a secondary health insurance policy, the court never ordered her to do so, and therefore it was improper to give her credit for the policy. The court also affirmed the overall increase based on mother’s increase in income.

Although some child support modifications, like the Schwartz case, will require back-and-forth – particularly where parties disagree – in some cases, it may be as simple as your attorney filling out a short form with the court for a small fee. The length and complexity of the process will depend on the underlying facts of your case. It will be important for an experienced lawyer to review your case before determining how best to proceed.

Additional Resources:

Schwartz v. Schwartz, Jan. 23, 2015, Nebraska Supreme Court

More Blog Entries:

Is Equal Parenting Time Best for Children? Nov. 19, 2014, Birmingham Child Support Lawyer Blog

 

 

Pacheco v. Marulanda: Child Custody and Visitation

Posted in Alabama Child Custody & Visitation

Child custody and visitation can be a simple matter in many cases if parties agree on all major issues and work together to raise their minor children.  However, child custody and visitation can also be one of the most contentious and heavily litigated areas of any family law case if one or both parents isn’t willing to work together and do what the court orders.

Pacheco v. Marulanda, a case from the Rhode Island Supreme Court, involved a fight over visitation. Mother filed a petition for joint legal custody of their minor child and physical custody in favor of herself.  Father opposed this motion, primarily on ground she had not returned his personal property pursuant to a separate legal matter.  After a hearing, family court judge determined mother would retain custody of child, and father would have visitation from Sunday at 10 a.m. to Monday at noon.  Father was also ordered to continue with his alcohol education and treatment.

Less than two weeks following this order, father filed a motion for contempt of court, asserting mother had interfered with his visitation rights.   Mother opposed his motion for contempt and argued for a modification of custody and suspension of visitation.  In support of this motion, mother asserted father had broken into her home, stolen her jewelry, and was found intoxicated in a vehicle with four blown tires and her jewelry in his pockets.
Continue Reading

In re Marriage of Edwards: High Net Worth Divorce

Posted in Alabama Property Division

In re Marriage of Edwards, a case from Supreme Court of Montana, involved husband and who wife who were married in 1989.  The couple had three children.  All three of their children were over 18 years old at time of divorce. The parties purchased a house located on 35 acres of waterfront property.  Additionally, husband had purchased his family’s well-established supermarket.

tax-169849-mAt time of divorce, the business estate included the building in which supermarket was located, a 350 acre ranch, a new home located on this ranch, and old home on the ranch, another older home and shop, and various equipment and personal property.  Total assets of their marriage were valued at $2.25 million.

Trial court attempted to divide martial estate equally and awarded their home and 35 waterfront acres and 350 acre ranch to wife and all remaining business assets to husband.  There was considerable expert testimony, which established under IRS guidelines, if husband sold any assets of the business during a 10-year period, he would incur substantial corporate tax consequences.  Judge still ordered husband to transfer business real estate but ordered husband to use an IRS reorganization procedure to which wife’s expert testified to minimize tax consequences.
Continue Reading

In re Marriage of Gust: Spousal Support Termination

Posted in Alabama Alimony, Alabama Child Support

In re Marriage of Gust, a spousal support appeal from the Supreme Court of Iowa, involved husband who was ordered pay $1,400 per month in spousal support (alimony) beginning upon dissolution of marriage.  Once child support payments terminated (upon child reaching age of majority), spousal support was to increase to $2,000 per month for life. Trial court also divided marital property roughly equally in its divorce decree and property division order.

According to court records, husband filed a post-trial motion to have spousal support be set at $1,400 and then reduced to $1,000, and for a termination date to be included include rather than an order to pay spousal support for life.   Wife filed an opposition to this motion, and trial judge denied the motion.  Husband appealed this denial.

On appeal, court first looked at relevant facts of the case.  Steven and Linda Gust were married in 1985. At trial, parties had two children.  One was 17-years-old and the other was 20-years-old. Wife was 52-years-old. Husband was 57.  Husband had graduated college in 1977 and worked at several companies before joining his current employer for whom he is a general manager.
Continue Reading

Parisi v. Parisi: Alimony Payment and Contempt of Court

Posted in Alabama Adoption

Parisi v. Parisi, a case from the Connecticut Supreme Court involved husband and wife whose marriage was dissolved on November 19, 2010.

When their marriage was dissolved, trial court incorporated a separation agreement into its divorce decree.  Both parties created this separation agreement with help from counsel months prior to obtaining a divorce decree.   It was finalized eight days prior to trial judge signing a divorce decree.

taxesIn one of the sections titled “Alimony and Child Support,” it provided no periodic alimony payable or requested from husband to wife or from wife to husband.  Instead of alimony, husband would pay wife a nontaxable/nondeductible alimony amount of $300,000 from his share of the marital estate prior to date divorce decree was entered on the record.

Prior to the decree being entered, husband provided wife a spreadsheet attached to his financial affidavit, along with account information showing balances totaling $300,000 marked alimony buyout.
Continue Reading

.