Alabama Divorce & Family Law Attorney Blog : Birmingham Divorce Lawyer & Attorney : Eversole Law Firm : Serving Birmingham, Montgomery, Mobile Alabama

Most people think of needing a Birmingham family law attorney when they are about to file for a divorce.

And it's true that it's certainly important to secure solid legal representation before you even initiate divorce proceedings.

But you might find yourself needing the assistance of a family law firm long after the divorce order has been finalized, particularly if you and your ex share children. These are called "post-divorce actions."

One of the primary reasons is child support modification.

The court won't typically allow for a child support modification - unless there is some material change in circumstances that is both substantial and also continuing since the last order of child support. This kind of material change could involve any of the parties involved - either parent or the child.

That said, there are no hard-and-fast rules for when a modification will be awarded and when it will be denied. That means a lot of is going to depend on the strength of the argument presented by your attorney - so the person you choose to represent you may  have a great deal of influence on the outcome.

Just to give you an idea, though, here are some general reasons that would the court would grant a review of the current child support order:

• The parent who is paying the child support has been spending more time with the child. This might in turn lower the amount of support being provided to the parent who is on the receiving end.
• The parent who is paying child support has been earning more money. This could result in an increase of support payments to the receiving parent.
• The parent who is paying the child support has encountered a severe financial hardship. Some examples of this might be if he sustained a serious injury that rendered him unable to work or if he suffered a major illness resulting in astronomical health care expenses that left little left over. Any situation like this might be grounds to have the support payments lowered.
• The parent who is receiving the child support has had a change of income. That could be the result of a remarriage or a job promotion or it could be the result of a job loss or health issue. Depending  on the circumstances, an increase or decrease could be warranted.
• There are some extraordinary costs for transportation for visitation purposes that are being substantially shouldered by one of the parents. For example, if your ex moved with your children out of state and you now must pay the cost for flights every time you wish to see them, that could factor into decreasing the support payments.
• Your child has a medical emergency or becomes disabled or requires some level of extra care that makes the current level of support inadequate.
• The passage of time. The cost of living may increase over the years. So too does the cost of raising a child as he or she gets older. If you can prove that the changes have been significant, you may be entitled to an increase in support.

Note that these are not the only reasons why the court would consider a modification, so if your situation varies somewhat, it's certainly worth it to discuss your options with an attorney.

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Celebrity news sites have been recently reporting on the fact that Brooke Mueller, mother to Charlie Sheen's twin sons, has lost custody of her children, at least temporarily, to Sheen's other ex, Denise Richards, with whom the actor also has two daughters.

Our Birmingham child custody lawyers understand this particular case involves allegations of substance abuse, and the two women are friendly with one another. This latest custody arrangement was made with the approval of Sheen, who himself has had a well-documented history of substance abuse.

Many parents in Alabama have, for one reason or another, found themselves in a situation where they have lost custody of their children and are working hard to regain it or have had to fight to be granted sole custody.

Officially, Alabama favors a joint custody arrangement in which both parents play a central role in raising the child, though they may not share equal physical custody.

In some cases, the court may award sole legal custody to one parent over the other. That means that one parent is given the sole right to make important decisions regarding the child's education, health, religion and general welfare.

Still, judges will consider a joint custody option before anything else, unless there is just cause to show why that would not be in the best interest of the child. In cases where neither parent is considered suitable, other relatives, such as grandparents, aunts or uncles, may be considered.

The court should also take into consideration the safety and well-being of the child, the capacity of each parent to provide for the child's physical, emotional, social and educational needs and in certain cases, the preference of the child.

In cases where either you have requested or the court has deemed it necessary to hold a child custody evaluation, the court may appoint a custody evaluator who will meet with both parties and then make recommendations to the court based on those meetings.

Needless to say, there is a lot of pressure, and a lot of parents find themselves overwhelmed by the prospect.

As such, there are some general tips that will be helpful before you begin:

• Heed the advice of your attorney. You have an attorney, right? That's one of the most important first steps. He or she will be able to advise you of any specific things you will want to bear in mind. Listen to his or her advice.
• Understand the role of the evaluator. This person is not your friend. She is not your counselor. She is not your advocate. All of that is true whether you were the one who requested the evaluation or not. Never assume that this person is on your side.
• Don't coach your child about what he or she should say. The evaluator will notice it, and it won't bode well for you.
• Be on time, dress neatly and be polite. Be careful not to get offended if the evaluator asks questions you may not like. He or she is just trying to gauge what is in the best interests of the child.
• Don't speak badly about your ex, unless the circumstances are extreme. You can be honest, but you want to show that you have the desire and ability to co-parent.
• Make sure you have as many positive character references as possible.

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A retired judge has agreed to temporarily take on Jefferson County divorce cases after Jefferson County Circuit Court Judge Dorothea Batiste was suspended with pay, while a hearing involving complaints against her is pending before the Alabama Court of the Judiciary.

Our Birmingham divorce attorneys understand that as of April 23, divorce cases in the county circuit court will be handled by Judge Gary Pate. His assistance will allow all pending divorce cases on Batiste's docket not to become stalled while she is unavailable to continue hearing them.

There may still be some issues with continuity, but those situations can be handled on a case-by-case basis. Pate had once been the presiding circuit court judge in the domestic relations court.

In the meantime, the Alabama Judicial Inquiry Commission has released a lengthy complaint against Batiste that charges 30 violations of the state's canons of judicial ethics in five of the divorce cases over which she was presiding. Her suspension came immediately following the release of that complaint, which will ultimately be heard before the court of the judiciary, specifically alleges wrongful arrest orders for witnesses or other parties accused of contempt of court in divorce cases.

Specifically, she is accused of repeated failure throughout 2011 and 2012 to comply with Rule 70A of the Alabama Rules of Civil Procedure pertaining to due process, as outlined in both the state and federal constitutions. 

The inquiry commission says that not only are the basis of these arrests in question, but the fact that Batiste additionally ordered that the defendants not be released on bond is being challenged.

The contempt of court arrests involved mostly women but at least one man.

In one of those cases, the arrest warrant was issued for the single mother of a 6-year-old girl after she failed to appear at a court hearing as a witness in a divorce case. It was not her divorce. The woman had contacted her own attorney after finding a subpoena on the door of her unoccupied apartment two days before the scheduled trial date. She had already scheduled a Florida vacation with her family at that time. Her lawyer advised that the subpoena was not properly served and therefore she was not obligated to appear in court.

She called the court to ask if the case was being continued, but the clerk could not give her an answer. She went on her vacation as planned. She later learned Batiste had issued an arrest warrant for her, even though the case had been continued. Further, the commission reported, Batiste ordered that the woman be held without bond - a violation of state law.

When her attorney attempted to schedule a hearing to purge the outstanding warrant, he was informed that the judge wanted the witness to spend some time in jail before she would hear his motion.

The defendant turned herself in on a Friday and the judge scheduled the hearing for the following Monday. However, the judge reportedly refused to allow the defense attorney to argue the law or facts of the case or for the defendant to speak in her own defense.

The defendant was subsequently allowed a conditional release from jail, provided she pay a $950 attorney fee to the representative of the individual she was set to be testifying against.

The five other cases are detailed in this same narrative throughout the commission's complaint.

An attorney for Batiste has called the allegations a "travesty of justice." 

If the court of the judiciary finds Batiste has done wrong, it has a number of options for recourse, up to and including removal from her judicial post.

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A bill was recently introduced in North Carolina that would make it tougher for married couples to obtain a divorce - even those without children and whose cases are fairly straightforward.

Our Birmingham divorce lawyers understand that the North Carolina bill would mandate a two-year waiting period upon application of a divorce from either party. Additionally, couples would be forced to undergo a counseling courses on conflict resolution and improving communication skills. If the couple have a child in common, they would be required to undergo a separate course on the impact of divorce on children.

While we do understand the desire of conservative politicians to strengthen the bonds of marriage,the reality is that many of these unions are irretrievably broken, all parties involved know it and no one is done any favors by having the process dragged out for years.

Proponents of the measure say divorce is far too easy and that making it harder will keep people together. Perhaps that is true in some cases.

However, people end their marriages for all sorts of reasons - many of them very good ones. If your spouse cheats on you and you don't have children, you may not have any interest at all in working on improving your communications with them. It's painful as it is, you don't need more time to think about it and you simply want to be done with it.

With the current divorce waiting period in  North Carolina at one year, it's already one of the longest in the Southeastern United States as it is. Virginia and South Carolina also require on year. But in Tennessee and Georgia, couples need only wait a few weeks. In Florida, couples can actually file their request online.

In Alabama, there is no waiting period for which to file. Couples don't have to file for legal separation if they don't want to do so (although there may be advantages to it, depending on the circumstances of your case). According to Alabama Code Section 30-2-8.1, the judge has to wait at least 30 days from the filing of the complaint in order to enter a final judgement of divorce. Temporary custody, child support, visitation, exclusive occupancy and restraining orders are exempt from this waiting period.

One very troubling aspect of the North Carolina measure is that there is no special exception made for victims of abuse or domestic violence. Legislators said they "might" add that to the bill before it reaches the Senate floor, but it wasn't a guarantee.

To force victims of abuse to endure an additional year of being tied to an abuser is not only cruel, it's potentially dangerous.

In Alabama, there are a dozen different legal grounds for divorce. Those include adultery, voluntary abandonment, imprisonment, commission of a crime against nature, addiction, a long-term mental hospital confinement, domestic violence or the pregnancy of a woman before marriage with someone else's child. All of those require a finding of fault, Most usually, people file under either incompatibility or irretrievable breakdown of the marriage - neither of which requires proof of fault.

Although the law in North Carolina won't have any direct effect here, even if it is passed, we'll be watching it closely. We here in Alabama also have a generally conservative legislature, and it's not out of the question that should this North Carolina law gain traction, Alabama may soon find itself introduced to something similar.

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There is a fair amount of evidence to suggest that people have been getting married since pretty much the beginning of human civilization.

They've been getting divorces for about that long too, though our Birmingham divorce attorneys recognize that the process of a union's ending - much like its beginning - has varied through the ages.

We all know that in the U.S., divorces have rapidly increased in terms of both sheer volume and acceptance over the last 60 to 70 years. Even just from 2000 to 2011, the Centers for Disease Control reports the divorce rate increased from 6.8  per 1,000 people to 8.2 per 1,000.

It may be coincidence that during these time frames, technology has advanced exponentially. Even if technology isn't necessarily prompting the divorces, it is most certainly playing a larger-than-ever role in the proceedings.

We are now seeing every aspect of divorces affected by technology. Splits are initiated on the basis of Web site traces, smart phone records, e-mail messages and texts.

We have seen in some cases where spouses have stolen phones, hacked Facebook pages and even loaded surveillance devices onto family computers.

What we are increasingly seeing is that just about every shred of information you might have once held private  is not necessarily so anymore. As the president of the American Academy of Matrimonial Lawyers was quoted by the New York Times as saying a few years ago: "(Electronic evidence) has completely changed our field." 

What we tell our clients is that almost every digital communication you've ever had holds the potential to be used against you in divorce court.

This can either work to our client's advantage or disadvantage, depending on the circumstances.

On the one hand, it can be detrimental to clients involved in an affair, consuming illegal substances (or even abusing legal ones) or hiding money. On the other hand, it can be very beneficial to the party on the other side.

We routinely handle cases in which there are requests to judges for court orders to seize and copy computer hard drives and sometimes even phone records, especially if there might be the opportunity to reveal a more complete picture of the couple's finances or the suitability of one parent over the other with regard to child custody.

But the laws in this realm can be complex, and they haven't all yet caught up with the technology. For example in some cases, it might be illegal for you to access your spouse's email address. Same thing with phone messages, even if you're on the same family plan.

You may be wise to run your suspicions by a divorce lawyer first, just to see whether your tactics will be able to stand up in court - or whether you might actually find yourself criminally prosecuted for such action.

But as for our client's e-mails, what we tell them to consider is that the only truly and consistently protected information in your private e-mail accounts are messages to and from your attorney, as those will be covered under attorney-client privilege.

With everything else, you need to understand that once you hit that send button, you aren't guaranteed privacy.

Platforms like Facebook have made this all particularly interesting because now, we have a clear, documented timeline of events, interactions, photographs and videos. No matter how tight your privacy settings are on your social media page, consider everything on it public.

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Our Birmingham divorce lawyers know that there is always much to consider following the end of a long-term marriage.

One of those that must be weighed carefully is the distribution of assets, particularly when it comes to various insurance policies, joint accounts, and retirement funds. The hope is that by the time the divorce is finalized, there won't be any outstanding questions and you will be free to move on without any lingering doubt.

However, that doesn't always happen, and it can lead to bitter battles many years later.

That's what's happening in the case currently before the U.S. Supreme Court. Hillman v. Maretta involves a widow, an ex-wife and a man who died five years ago.

It started back in 1966 in Virginia. It may end in implications for divorcees in Alabama.

According to court documents, Warren Hillman married Judy Maretta. Back then, he was a federal employee, and he named his wife as the beneficiary on his group life insurance, which was held by the Federal Employees' Group Life Insurance Act.

Two years later, the pair decided to end their marriage.

Hillman remained divorced until 2002. At that time, he remarried. However, what he failed to do was update his life insurance policy to reflect that his new wife would be the beneficiary. Even though it had been 34 years since his marriage to Judy ended, she remained the beneficiary on his policy.

Just six years after his remarriage, Hillman passed away. Per the details of the policy, his ex-wife received approximately $125,000 in federal life insurance benefits.

The man's widow, however, felt this completely unfair - and she sued in civil court in Virginia under a state statute that revokes the right of a divorced spouse to life insurance benefits in favor of the widower or widow. The idea is that most people presumably want to have benefits channeled to their current spouse, rather than any ex-spouses.

(In a similar case out of Alabama, Brunson v. Harold, the appellate court ended up siding with the widow, rather than the ex-wife and her adult children.)

At its root, the Hillman case is about preemption. That is, does a federal statute preempt the state law in this regard. Specifically, U.S.C. 8705 holds that federal life insurance policies have to be paid out in order of precedence. At the top of that list is any beneficiary or beneficiaries named by the decedent. In this case, that would be the ex-wife. If the Supreme Court finds that federal law preempts the state law here, there is a likelihood the ex-wife would get to keep the money.

The widow is arguing that in this case, federal law wouldn't preempt state law because states for the most part are responsible for the oversight of domestic relations - specifically, family and divorce matters.

Initially, the county circuit court agreed with the widow. But that decision was later reversed by the state's supreme court, on the basis of preemption. Now, it's in the hands of the U.S. Supreme Court Justices.

The real blunder here was by the deceased spouse. His ex-wife should have been removed as beneficiary under his policy soon after the divorce. Had he done this, then under the order of precedence, his widow would be the next in line for the money. Again, this illustrates why having an experienced divorce attorney is so critical. You need to ensure that no aspect has been overlooked.

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More than ever, blended families are becoming the norm in the U.S.

You have 60 percent of all marriages ending in divorce, 75 percent of all divorced persons eventually remarrying and 65 percent of those involving at least one child from a prior marriage.

This is a big part of the reason that stepparent adoption has become the most common type of adoption.

Our Birmingham stepparent adoption lawyers know that this will be a pivotal moment in all of your lives, even if you have been living together as a family for some time now. It means that the stepparent promises to assume both legal and financial responsibility for his or her spouse's child. It also requires that the noncustodial parent will relinquish all of his or her rights or responsibilities with regard to the child - including child support.

In some of these situations, the other legal parent is deceased. That will mean the process is a fairly straightforward one, particularly if the child is young and this is something desired by all parties involved.

Usually where we might see the most complications is a noncustodial parent who has a change of heart. They may initially agree to the decision (often with the understanding that their child support obligations will be relinquished) only to later fully grasp the gravity of the situation and suddenly do an about-face. Usually, it is not so much that the noncustodial parent intends to suddenly be an involved part of the child's life as he or she doesn't want to let go of that sense of power. And of course, it can be an incredibly emotional transition, even if the noncustodial parent realizes that the stepparent adoption is in the best interest of the child, emotionally and financially (particularly with regard to things like insurance, etc.).

These situations have to be handled with firm strength, but also with compassion and understanding. Our goal is for everyone to walk away from the process feeling confident in the fact that they have done the right thing.

The good news is that a stepparent adoption with the consent of the noncustodial birth parent is often much easier than a non-relative adoption. A lot of the procedures are the same, but you do get to skip over some of it. For example, a lot of times you won't have to go through the home study, the waiting period or the adoption hearing.

There are some situations in which noncustodial consent isn't offered, but the stepparent may still be awarded parental rights. If you can show that the parent has essentially abandoned the child for at least a year - no phone calls or visits, no child support payments, etc. - you could likely make a good case for adoption. Similar circumstances might exist if the noncustodial parent is in prison and is expected to be so throughout most of the child's youth. Along these same lines, you might be able to prove that a parent is unfit if he or she has a long history with drug or alcohol addiction or criminal history.

If you have questions on this process, we are here to help.

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Our Birmingham child support attorneys have come across many clients who were reticent to seek child support payments because they were sure the other person couldn't or wouldn't pay and there would be little opportunity to force them to do so.

This is simply not true, and a case out of New Jersey illustrates why it is important to, at the very least, get that order in writing.

In that case, one man was the incredibly lucky winner of $338 million, which he chose to accept in a lump sum of $211 million. This was the third-largest single cash prize ever awarded by the lottery.

The very next day, sheriff's deputies were knocking on his door. As it turned out, the Powerball winner was nearly $30,000 behind in child support payments.

Of course, he now has ample ability to pay - and to continue paying, if that's what the court order requires. But the fact that the mother of his children had that order in hand means that collection of back pay and future funds will be relatively easy.

Such an order would not have been impossible to obtain after the fact, but it would have been measurably more difficult.

Now, we're not expecting a rush of deadbeat parents to suddenly come into a fortune. But it's not uncommon for situations to change. Addicts get clean. The unemployed get jobs. People graduate, get promoted, earn a raise, claim an inheritance. There are all kinds of reasons why someone who was previously unable to pay child support is suddenly able to begin making payments, and there are numerous resources to utilize in order to collect those payments. Rarely if ever will it involve you personally reaching out to your ex.

Additionally, such changing circumstances might be grounds for modification of a child support order. Where once your ex may have only been able to afford $200 a week, now maybe it's more reasonable that he can afford to pay $300 a week.

You might also be entitled to a temporary modification if, say, your child has a one-time major expense, such as school uniforms or braces, that will require some extra support. You may also seek a permanent change if some circumstance changes with your child. For example, if your child falls ill or requires some special needs care, you may seek an order requesting more in child support payments.

At the federal level, it is a misdemeanor to willfully fail to pay past due financial support for one's children. That may be bumped to a felony if there is some interstate effort to evade payment obligations or if the amount is above the $2,500 threshold or if it's been unpaid for more than two years.

Even if your ex doesn't come into a windfall, there are still options the courts can take to force his hand, such as:

• IRS and state tax liens;
• driver's license suspensions;
• passport denials;
• sheriff seizure of automobiles;
• wage withholding.

States know that the more arrearages accrue, the tougher it can be to collect, so there is an incentive to act quickly when there is an issue of non-payment.

In the case of the lottery winner, in many cases, the state's division of lottery would satisfy that judgement against him before any winnings were awarded. The sheriff's office warned that unless and until that amount was paid, the winner was subject to arrest.

If you are planning to seek child support payments in Birmingham, all our experienced attorneys today.

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A recent story out of Southern Florida chronicled the three-year saga of a divorcing couple.

In many ways, our Birmingham alimony lawyers recognized it as a story similar to so many across the country. They fell in love. Had children. Lived well. Vacationed around the world. Then they fell out of love, each for their own reasons. Now, they were dividing every detail of their lives - their assets, their bank accounts and their time with their children.

Most news outlets won't touch an individual divorce case with a 10-foot pole, especially not in-depth and over the course of three years, unless there is some compelling reason, such as the significant prominence of at least one of those involved.

The Tampa Bay Times enterprise reporter attended one hearing early on at the invitation of the husband, simply as a way to see how the process worked. What she ended up finding was all the ways the process didn't work.

In her in-depth story, "The divorce from hell, the battle for alimony and emptied pockets," she wrote about how the issue of alimony had been the one bit that had bogged the case down from the start (although it was true that by that point, the couple could hardly agree on anything at all).

The husband had started with an offer on the table of $5,400 a month. That was rejected, and six offers and many bitter legal battles later, it was down to $0. 

Cases like this are often referred to as high conflict, and they require an attorney who can be equal parts aggressive and sensitive. In these cases, an attorney needs to know when to stand his ground and when to back down.

It's important because the issue of alimony or child support or asset division needn't spiral into a years-long nightmare like this one. Sure, it's easier if you and your soon-to-be-ex can come to an agreement. But it's expected you will have differences. That's probably one of the reasons you are divorcing in the first place. An experienced lawyer knows that while divorce is almost never easy, it shouldn't be "hell." 

On the issue of alimony, Alabama State Divorce Code, Chapter 2, Section 30-2-52, 30-2-53, these payments, if any, will be based on the need of the person requesting versus the ability of the other to pay it. If fault (such as infidelity) is a factor in the divorce, the judge has the authority to make an allowance to either spouse out of the estate or to decline to do so.

It's worth noting that whatever property you or your spouse acquired prior to the marriage or as a result of an inheritance will not be considered as subject to calculation in alimony determinations.

In some cases, a judge may order a temporary alimony agreement during the course of the divorce proceedings. That order may be lifted in favor of another or none at all following the end of the process. This can either be paid on a set schedule or in a lump sum.

Permanent alimony was once quite common, though it has become rarer as the years have worn on. In many cases, the judge may order long-term alimony, but will decline permanent alimony payments. Permanent payments are often reserved for older folks, particularly those who may have served as homemakers during especially long marriages.

In shorter marriages, the court is generally going to view alimony through the lens of rehabilitation. That is, an allowance given for a set period of time to allow the other spouse to get back on his or her feet.

There have been some cases in which the court has awarded some modicum of alimony to a spouse who worked full-time to support both parties while the other was attending advanced vocational training or graduate school.

Whatever your situation, we are dedicated to helping you through this process with as smooth a transition as possible. We recognize the road to divorce may be imperfect, but the ultimate goal is to get you someplace better -- sooner rather than later.

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