Alabama Divorce & Family Law Attorney Blog

Mahan v. Mahan: Joint Owned Businesses and Divorce

Posted in Alabama Property Division

Mahan v. Mahan, a divorce case from the Supreme Court of Alaska, involved a couple who owned a commercial fishing boat together during their marriage. Their divorce decree and marital property dissolution agreement included a provision the ex-spouses would share their profits from the commercial fishing operation after fuel costs and canning expenses had been deducted.

lobster-boat-1-1360967-mWhile this dissolution order seemed appropriate on its face, the parties had a dispute over the meaning of profits. Both ex-spouses were arguing the other owed them money. There was a Master’s hearing, and the court determined profits to mean total profits from the cannery after fuel, dues, and any other advancements were subtracted from gross revenue. Continue Reading

Norris v. Norris: Moving Children Out of State and Child Custody

Posted in Alabama Child Custody & Visitation

Norris v. Norris, a case from the Supreme Court of Alaska, involved married couple that met in Fairbanks when husband was stationed on a military base there.  Wife had been living there since 2006.  Husband was originally from Mississippi.  The two met and became involved in a romantic relationship.  They had a child in 2011 and got married just after child’s birth.  Unfortunately, as is the case for many marriages, they began having relationship troubles.

deep-snow-on-alaskan-peaks-1390517-mIn an attempt to put their marital troubles behind them and “start a new life,” the couple decided to move to husband’s hometown in Mississippi.  Husband’s employer, the United States Army, moved all of the couple’s belongings, including their personal vehicle, to their new home.  Husband registered their car as soon as it arrived, and both parties completed change of address forms with the U.S. Postal Service.

Wife began unpacking their child’s room and setting up their new home, while husband began attending college during the day and working at night.  Meanwhile, wife found a job at a local deli but quit soon thereafter.  The couple also found a pediatrician for their child, and he saw that doctor several times during the time couple was living there. Continue Reading

Still on the Mortgage After Divorce

Posted in Alabama Property Division

In many marriages, the biggest asset (or debt depending on the real estate market) is the family home.  Many couples own a home together and owe a considerable amount of money to the bank.  This is especially true for any couples that purchased a home before the real estate downturn beginning in 2008.

bank-loan-concept-1446014-1-mAs part of any divorce proceeding, a property division is often one of the most difficult aspects of reaching an agreement prior to trial.  Many parties agree one spouse will essentially buy out the other spouse.  The problem may arise when the bank is not a party to this agreement and doesn’t agree to remove one former spouse from mortgage.  This leaves the spouse who did not get the house in a somewhat unpleasant position.  They have no legal interest in the house, but his or her name is still on the mortgage.  If the spouse living in the house stops making mortgage of payments, the house can be foreclosed upon.  While this may not seem like a problem to the spouse who did not get the house, it will become a problem when he or she finds out the foreclosure will destroy his or her credit rating. Continue Reading

Advice From Children of Divorce

Posted in Alabama Divorce

There is no question that divorce is an emotional event for everyone involved, but it is often the couple’s children who everyone is most worried about. According to a recent article from Huffington Post, there are certain steps both spouses can take to help make divorce easier for their children.

Interestingly, one of the most important things you can do to help your children during and after your divorce is realize a divorce doesn’t mean you have failed as a parent. It is important to realize that the strength of your marriage, or lack thereof, does not have any bearing on your skill as a parent. As the article points out, being able to function as a good mom or dad, regardless of the divorce, should reassure you that you can still be a good parent to your children.

Another important thing is not to insult or speak badly of your ex in front of your children. There are certain conversations best had outside of the presence of your children, and insults or negative comments about your ex should be included in this category. When children hear these things, they do not know how to process them, and it may end with hostile feelings to you, or could negatively affect your child’s emotional state in general. Continue Reading

Gender Bias Continues to be Cited in Child Custody Battles

Posted in Alabama Child Custody & Visitation

Throughout most of the 20th Century and up until quite recently, most family law courts would almost automatically grant child custody to the mother, unless there was ample evidence proving she was unfit. couplewithchildcart

That has changed. Most states do now favor some form of joint custody arrangement, but there are those who say the courts still tend to show an unfair preference toward women. Certainly, there seem to be ongoing examples of this throughout the country.

Just recently in Maryland, an appellate court overturned the child custody ruling of a county circuit court issued last year, citing gender bias in the placement of a 14-year-old girl with her mother. The appellate court ruled the placement was a contradiction of both judicial precedent and state law.

The trial court in its ruling noted that it is most important for an adolescent female to have a close relationship with her mother. This may well be true, but, the appellate court pointed out, that kind of maternal preference was expressly dropped by the state in 1974. The “maternal preference doctrine” was the statute under which children were presumed to belong to their mother.

The state’s highest court ruled 14 years later that the state-level Equal Rights Amendment bars custody rulings based on gender preferences.

The presumption of the mother as the better parent, more inherently entitled to receive child custody, no longer receives the support of the law.

The father in the case had appealed the decision to award physical custody of his teen daughter to his former wife, arguing (rightly) the law bars a generalization that fathers are better for raising sons or mothers are better for raising daughters.

Those kinds of arrangements can certainly have their advantages, but the reality is, it is unfair to offer preference to one parent or the other simply on the basis of gender.

A proposed measure in that state would require family law judges to apply a rebuttable presumption in cases where parents are estranged, awarding joint physical custody of the child. Legislators say the move is needed to help counter the systemic preference judges show mothers over fathers.

Still, there is other evidence to suggest those biases may not be as widespread as some think. The Pew Research Center issued a report in 2011 indicating that married mothers spend an average of 13 hours weekly engaged in primary child care activities while fathers tend to spend about 6.5. This is despite the fact that women are working in fairly equal numbers. In examining the best interests of the children, courts will often analyze the closeness of the parental bond, and given these figures, it’s not surprising that mothers – on average – may be closer to the children.

Further, in 51 percent of cases, parents agree on their own together – before taking the issue to court – that the mother should be the one to retain physical custody.

But every case is different.

When these matters do go to court, the judge has a duty to make a determination based on the best interests of the child. Parents in the center of a custody dispute will need to secure representation from an experienced legal advocate in order to ensure their rights and those of their children are protected.

Additional Resources:

Gender bias and child custody, March 18, 1015, Opinion, The Frederick News-Post

More Blog Entries:

After Alabama Divorce, Divide Your Estate Plans Too, Feb. 28, 2015, Birmingham Child Custody Lawyer Blog

Report: U.S. Parents Owe $14.3B in Unpaid Child Support

Posted in Alabama Child Support

Unpaid child support is a major problem in the U.S., according to new research by NPR that indicates courts have tabulated a current outstanding child support balance of $14.3 billion.parents

This is money that children are not receiving for essentials like housing, meals and clothing – not to mention the extras like baseball or dance uniforms or other extracurricular costs. When one parent is saddled with all of the child-rearing expenses, it hurts not just the adult but the child too.

The analysis, conducted with data analysts at FiveThirtyEight.com, took a look at the figures from the 2011 Census Bureau, which were the most recent available. While $14 billion is a staggering number, it’s perhaps unsurprising considering that we know of many cases in which custodial parents struggle to collect child support. Still, there were some unexpected findings too.

For example, mothers are worse at paying child support than fathers. This counteracts what we understand to be the norm, though there are a few statements to qualify those findings. First of all, custodial mothers outnumber custodial fathers 5-to-1. Secondly, mothers are more likely than fathers to be awarded child support when they do have custody.

That said, 32 percent of custodial fathers were still waiting on payment of child support from the mother, while the same was said of approximately 25 percent of mothers.

Although the data doesn’t spell out exactly why that is, researchers theorize there could be a number of things going on. First is that custodial dads have a much higher income than custodial mothers – about $52,00 on average versus $26,000 for moms. That could mean fathers aren’t as aggressively pursuing payment of child support.

The other theory is that when a father becomes a custodial parent, it’s often due to the fact that the mother was not in a good position financially. Perhaps she is struggling to obtain work or has a drug problem or there could be some other issues going on.

Another interesting fact that was extracted from the numbers was that couples who were never married to the other parent are less likely to be rewarded court-ordered child support payments in the first place, and also less likely to eventually receive payments that are rewarded.

Researchers opined this could be that those who were first married and now divorced are older and therefore in a better financial position. However, there were no numbers officially to back that hypothesis.

There were also racial disparities. For example, white custodial parents reported they received child support paid in full 54 percent of the time. That compared to Hispanic custodial parents who reported receiving full payments 46 percent of the time. Black custodial parents, meanwhile, received full child support payments 38 percent of the time.

In Alabama, parents seeking to enforce child support orders should contact an experienced family law attorney. There are ways we can help to put pressure on the child’s parent to pay what they owe.

First of all, any parent who is in arrears more than $1,000 in child support payments will be reported to credit reporting agencies. Even once that amount is paid back, record of that debt remains on file for at least seven years. There is also the option of custodial parent to report the other to the Internal Revenue Service and the State Department of Revenue, and support can be deducted from the other parent’s refund taxes.

If the amount owed is $2,500 or more, the other parent can request a passport denial, as well as levies and liens on any existing bank accounts and properties owned by the other parent. There may even be grounds to issue a license suspension or revocation and possibly even federal prosecution (when the other parent crosses state lines to avoid paying).

Our lawyers can help you learn more about your options.

Additional Resources:

Who Fails to Pay Child Support? Moms, At A Higher Rate Than Dads, March 1, 2015, By Rachel Martin, NPR News

More Blog Entries:

L.M. v. K.A. – Full Disclosure Required in Alabama Child Support Cases, March 2, 2015, Birmingham Child Suport Lawyer Blog

Alabama Same-Sex Divorce Approved by County Judge

Posted in Alabama Divorce

The issue of same-sex marriage in Alabama is still very much on hold at this point, but it now appears same-sex divorce may be approved. holdmyhand

A Madison County Circuit judge granted the divorce sought by two women who were married three years ago in Iowa. Last year, the pair had made the very same request before the very same court and the very same judge – and were turned away. At the time, the judge ruled that because the state of Alabama doesn’t recognize same-sex marital unions, she had no authority to approve a divorce.

The couple, both Alabama natives, were faced with the option of having to move to Iowa for a full year to establish residency so that they could secure a divorce there under state requirements. Instead, they chose to defer the decision in an effort to see how the federal courts would answer. There are numerous same-sex marriage challenges pending in federal courts in Alabama.

Then in January, a federal judge based in Mobile issued a ruling that the Alabama ban on homosexual marriage was in direct violation of the U.S. Constitution. Specifically, the equal protection clause was being violated with enforcement of the ban.

A month later, that same federal judge in Mobile issued an order finding the state’s marriage ban could be lifted, and probate judges were ordered to start doling out marriage licenses to same-sex couples.

On that same day, the couple again asked the county judge for a divorce.

Now, it’s been granted, with the judge offering a brief ruling that cited incompatibility between the couple. At no point did the judge mention the federal court’s decision. However, legal analysts have indicated the trial court was correct in finding it was bound by the federal ruling.

Still, the county judge did not cite any specific reasoning on her reversal. Instead, she focused on the more technical aspects – namely, the divorce settlement both parties had signed before. Also, the judge allowed the wife who changed her last name when the two were married could once again go back to using her maiden name.

Attorneys for the couple each said they wanted to complete the process here where they both live, work and have close-knit ties, even though they had to travel to another state to legalize their union.

But the issues of same-sex marriage and divorce are far from settled. Although hundreds of lesbian and gay couples married across the state after the federal judge struck down the marriage ban, the Alabama Supreme Court then ordered a halt to the issuance of same-sex marriage licenses. In that ruling, the court found the state constitution limited marriage to one woman and one man.

And after that, the Alabama Court of Civil Appeals reversed an earlier finding by the trial court that a woman from Georgia who was no longer with her same-sex partner could request visitation rights with the pair’s child in Alabama, where she now resided.

The appellate court decision stripped her of that right, at least for now.

Because there are a number of complex legal issues with which the state is still wrangling in these cases, same-sex couples seeking advice on separation, marriage, adoption, visitation, custody and financial support should contact an experienced Birmingham family law attorney.

Additional Resources:

Madison County judge grants divorce to same-sex couple, March 13, 2015, By Brian Lawson, AL.com

More Blog Entries:

Falling Divorce Rates Not Good News for Some, March 16, 2015, Birmingham Divorce Lawyer Blog

Alabama Divorce Education Bill Would Increase Hurdles

Posted in Alabama Divorce

Divorce is a difficult time for pretty much everyone involved. And yet, some lawmakers believe it should be harder. brokenheart

House Bill 150 would create an additional barrier to the divorce process in Alabama by requiring married couples who have children under 18 to first complete a “marriage dissolution education program” before the divorce could be finalized.

The measure, introduced by Rep. Bill Poole (R-Tuscaloosa), would require couples to pay $75 each to undergo what is essentially a counseling program under the direction of a “professional family life educator.” This person would have to be certified by the National Council on Family Relations. The sessions would include how to best carry out constructive parenting during the divorce, discussions on who children can feel their loyalties divided and how to avoid certain risk factors that could further erode ties.

The program would also contain information on the legal process of divorce, as well as information on the option the couple still has to reconcile.

Now, there is nothing wrong with parents educating themselves on how separation and divorce can affect children, and how best to minimize the emotional damage. But mandating this, along with all of the other added requirements, is troublesome for a number of reasons.

First of all, most couples who go to the trouble of seeking a divorce – particularly those with small children – are not reaching this conclusion lightly. In many cases, they have struggled for years unsuccessfully to reconcile the relationship. If reconciliation were an option, they would be pursuing it.

Secondly, the bill fails to take into account situations of domestic violence. A victim who has endured physical and sometimes sexual abuse from someone, sometimes for years, should not have to endure counseling sessions with someone who hurt them, especially when the topic of reconciliation is on the table. In some cases, such sessions may only serve to further inflame tensions, and put the victim at further risk.

There is the option in the bill for a family judge to waive the requirement, but a request for waiver would be no guarantee.

Thirdly, divorce is already expensive. That fact alone is often prohibitive for many couples, who end up staying together far longer than either of them want or than is healthy because they fear the cost of divorce. And the legislature wants to tack on yet another financial burden?

Finally, there is no suggestion that attorneys will be the ones doling out advice on the legal process of divorce in Alabama. This is concerning. There are many important and lasting legal considerations that must be made in a divorce, and one’s legal rights should be outlined by someone who is dedicated to protecting their best interests. Particularly where young children are involved, there is also the need for discussions on child support, child custody, visitation and equitable distribution of property. Having a non-attorney explain these things may result in unnecessary confusion.

Couples who wish to try to work out their differences prior to divorce already have the option of doing so, via counseling and mediation. But we’re talking about adults who need to given the authority to make what they consider the best decisions for their lives. While wanting to protect children is a worthwhile goal, mandating such action in what is ultimately a deeply private and personal matter is not the way to go about it.

Additional Resources:

Divorce ‘education’ bill intrusion by the state, March 19, 2015, Montgomery Advertiser, Editorial

More Blog Entries:

Clayton v. Langley – Alabama Appeals Court Weighs Child Custody Dispute, March 20, 2015, Birmingham Divorce Lawyer Blog

Ex Parte Jones – Father Not Responsible for Covering Son’s College Costs

Posted in Alabama Child Support

Prior to the fall of 2013, parents could be required by Alabama Courts to pay for post-minority support and college education expenses for children after they turned 19. That was under the ruling established in Ex Parte Bayliss. graduation

But then, in October 2013, the Alabama Supreme Court handed down its decision in Ex Parte Christopher, which effectively overturned Bayliss. The court held parents could not be required to pay support to their children after they reached the age of majority. However, the court was clear on the fact that the Christopher ruling was not to be retroactively applied, meaning if parents were already paying  college support for their children under court order, they had to continue to do so.

In Christopher, the court ruled that a high duty of care exists by an adult in a caregiving relationship with a child (i.e., parent, guardian, etc.). There exists the duty to supervise, rescue, control and support. There also exists the duty to ensure the child is educated. However, in applying the plain meaning of the term “children,” justices ruled this duty pertained solely to minors. Once children reached the age of adulthood, parents no longer owed such duty.

The more recent case of Ex Parte Jones , also before the Alabama Supreme Court, deals with whether the Christopher decision should be applied to cases that were pending when Christopher was decided. The Jones case had already been decided prior to Christopher, but the father was appealing and that appeal was pending.

According to court records in Jones, mother and father had two children and divorced in 1998. Some 12 years later, mother petitioned trial court to compel father to provide post-minority educational support for their son.

The trial court issued its ruling in April 2013, awarding post-minority educational support to the son. Father filed an appeal in September 2013. The court of civil appeals heard the case in April 2014. The court granted temporary jurisdiction of the case back to trial court to decide a percentage the father should pay. Trial court ruled he should pay 100 percent of his son’s college expenses, and that order was affirmed by the court of civil appeals in September 2014, though the decision was split.

The dissenting justice noted that while this case was making its way through the court system, the Alabama Supreme Court had issued its ruling in Christopher in October 2013. Because the court had expressly overruled Bayliss – and thus the whole basis on which father was compelled to pay – the justice ruled Christopher should be the standard applied because the Jones case was still pending at that time, and no final judgment had been entered.

Father then appealed to the Alabama Supreme Court, which granted review to determine whether the court’s order conflicted with its decision in Christopher, or whether it was correct to apply the Bayliss standard. Ultimately, high court ruled the appellate court erred in applying Bayliss.

Thus, the earlier decision was reversed and the case remanded.

This is not to say parents can’t pay for their child’s higher education. Indeed, there are strong arguments for why they should, or at least help to cover the ballooning costs. However, our child support attorneys recognize the court should not order such payments to be made, once a child becomes an adult.

Additional Resources:

Ex Parte Jones , Feb. 27, 2015, Alabama Supreme Court

More Blog Entries:

Report: Facebook Cited in One-Third of All Divorces, Feb. 27, 2015, Birmingham Child Support Lawyer Blog

Clayton v. Langley – Alabama Appeals Court Weighs Child Custody Dispute

Posted in Alabama Child Custody & Visitation

In Alabama, court rulings pertaining to child custody can be altered, but only when there is evidence of a material change in circumstance. childbicycle

The standard by which child custody modifications are reviewed in Alabama is called the McLendon standard, after a 1984 Alabama Supreme Court case of the same name. Basically, if the original order wasn’t for joint custody and the non-custodial parent wants to modify the order, he she has to establish that whatever inherent, disruptive effect is caused by uprooting the child will be offset by the positive good that will be done through modification.

The parent who wants a change also needs to establish not only that he or she is a fit parent, but that the alteration in the custody agreement is going to be in the best interest of the child’s welfare.

  • Material changes in circumstance could include (but are not limited to):
  • Custodial parent loses his or her job, cannot properly care for the child and won’t seek further employment;
  • Custodial parent develops a serious drug problem, to which the child is exposed and/or endangered;
  • Home environment is neglectful or dangerous;
  • Custodial parents fails to provide a stable home for child.

In the recent case of Clayton v. Langley, the Alabama Court of Appeals was asked to determine whether the child custody modification was appropriately weighed by the McLendon standard. Justices ruled it was not, reversed the trial court and remanded for further consideration under the proper standard.

In the Clayton case, parties had twin sons in 2006 and divorced five years later. They each remarried other people. Two years after the divorce, mother filed a petition seeking modification of child custody. Although the couple had originally been granted joint custody, that order was modified to allow father primary placement when the mother moved out of the school district her sons attended. She was paying father child support.

She indicated she planned to purchase a property in the school district, and requested that she receive primary placement custody, with the father getting secondary placement and ordered to pay her child support. Additionally, she said there was a dispute regarding which parent could claim the children on their taxes. She also sought an order specifying who had primary decision-making authority in certain matters.

Father requested that he retain primary placement.

A number of motions were filed. Father sought an increase in child support and an alteration of her visitation schedule. Mother sought temporary custody of the children because, she alleged, father intended to move out of the school district in the middle of the school year. (Father contended he had listed his current home and intended to move, but would not do so in the middle of the school year.)

Following a hearing, court awarded joint custody and shared placement to both parties, saying it was in the best interest of the children. Court also awarded mother decision-making authority on issues of school, religion and health, while father was allowed final say on issues of athletics and cultural and civil affairs. Each were required to attend co-parenting counseling, and each could claim one child as dependent on taxes.

However, father appealed arguing the court erred in failing to require mother to meet the custody modification standard set forth in McLendon.

Appeals court agreed and reversed, requiring further consideration under that standard.

Additional Resources:

Clayton v. Langley, March 6, 2015, Alabama Court of Civil Appeals

More Blog Entries:

Stover v. Stover – Navigating an Acrimonious Alabama Divorce, March 4, 2015, Birmingham Child Custody Lawyer Blog

.