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

Because Alabama recognizes legal separation, most people looking at divorce in cites like Tuscaloosa, Bessemer, Huntsville and Mobile do not always have to file for divorce, at least not immediately. As a Birmingham divorce lawyer, I know that a certain percentage of people considering a divorce action will also have thought about separation as an alternative. Legal separation, which can also be referred to as "judicial separation," "separate maintenance" or "divorce a mensa et thoro" (which translates roughly into "divorce from bed-and-board"), is one way that marital partners can legally formalize what is a de facto separation while at the same time staying legally married.

Folks all around Alabama choose legal separation for a wide variety of reasons. However, the most frequent explanation is because the one or both spouses believe that the marriage may still have a chance of being saved. Occasionally, legal separation may be chosen because of one or both of the parties have a moral or religious objection to divorce.

For the state of Alabama to recognize a legal separation, both parties must enter a decree of legal separation assuming all of the following requirements are satisfied:

1. The court determines that the jurisdictional requirements for the dissolution of a marriage have been met

2. The court determines the marriage is irretrievably broken or there exists a complete incompatibility of temperament or one or both of the parties desires to live separate and apart

3. To the extent that it has jurisdiction to do so, the court has considered, approved, or provided for child custody, and has entered an order for child support in compliance with Rule 32 of the Alabama Rules of Judicial Administration

As the above suggests, while legal separation does not necessarily lead to a divorce, it can leave the door open to reconciliation, in which case the parties typically do not need to do anything more since they are still married in the eyes of the law. If, however, the couple does not manage to find common ground, they may then wish to go through with a divorce, which must be filed for explicitly.

A qualified family law and divorce lawyer can help individuals navigate through the complexities of legal separation as well as full-blown divorce actions, which can be of great help during what is usually a difficult and emotional time for most people.
 

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As a Birmingham divorce lawyer, I know that sooner or later some people will need the services of an experienced divorce attorney. One of the reasons folks turn to a legal professional is because of the complex and sometimes labyrinthine structure of our legal system here in Alabama. Regardless of whether a person is getting a divorce in Gadsden or Tuscaloosa, or becoming legally separated in Mobile or Huntsville, there are many areas of the law that only a lawyer can guide you through.

One area that sometimes causes people confusion is the myriad of legal terms they hear or read in agreements, contracts and decrees. To help make things a bit more clear, I have listed below a few of the many important terms and definitions used in the area of divorce law. Because getting a divorce is fraught with new and possibly intimidating terminology, retaining a qualified divorce lawyer and family law attorney is an important first step.

=============== Divorce Terms ================
 

Abandonment
Applied when one married spouse leaves the marital home, in some areas this may be grounds for divorce or may reflect adversely upon the spouse who moves.

Adultery
Sexual intercourse by a married person outside of the marriage, which in some parts of the country may be grounds for divorce or could adversely affect the offender's case.

Affidavit
A sworn written statement usually made under oath or on affirmation before a magistrate or officer (often a notary public).

Alimony
Also called maintenance or support. See Maintenance.

Alimony Pendente
Spousal support to be paid by one marital partner to the other during the pre-trial period of separation.

Contempt of Court
The deliberate failure to comply with the orders or directives of the Court.

Contested
Any issue on which the petitioner and respondent cannot agree, which must then be decided by the court.

Default
Failure to respond in the prescribed manner within a given period of time. The Respondent in a Petition for Dissolution is said to be in default if he or she failed to respond within a set period of time, usually 30 days after the date of service.

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I’ll say right off that it’s probably true that most folks think a prenuptial agreement -- or prenup, as they say in Hollywood -- will kill the romance between a couple as surely as a an illicit affair. But does suggesting that your soon-to-be spouse sign a prenuptial agreement really spell the end of trust; Certainly not. Oddly, it may just make that bond even stronger. Rather than curse or jinx a pending marriage, a prenup should be looked at as helping to cement the relationship.

Contrary to popular belief, asking your future husband or wife to sign a prenuptial agreement should not be viewed as a sign of distrust, but as a mutual act of financial openness and faith in the enduring qualities of your relationship. As a Birmingham Divorce and Family Law Attorney, I’ve represented both women and men who have entered into a prenuptial agreement with a future marriage partner.

The trouble is that many people associate the mere mention of the prenup as a prelude to a bad marriage inevitably doomed to end in divorce. Because of this, it’s really no surprise then that most folks, men and women alike, can be quite apprehensive about raising this topic with a future spouse. But there’s really nothing to fret over.

First and foremost, a prenuptial agreement is a document created between future spouses prior to their exchange of marriage vows. An agreement of this type usually lists property settlements in the event of divorce, and could include other legal issues such as possible additional obligations that could arise during the marriage. In Alabama, the law requires that certain procedures as part of the process of forming a prenup, such as full financial disclosure between the two named parties. (It’s important to remember that the law actually prohibits prenuptial agreements if they are not truthfully represented.)

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Many married couples in Alabama use the services of an adoption agency to help them find a child in need of a good home. In Huntsville, Mobile, Dothan, Gadsden and other towns and cities across the state, adoption agencies provide experienced staffs capable of in finding children and matching them up with willing couples. These organizations also have the knowledge and capability to meet all the needed legal requirements.

As a Birmingham family law attorney, my interest is to see that people know what their legal responsibilities are in cases of adoption. Here in Alabama, adoption groups help adoptive parents with a wide range of services including locating a birth parent to putting the finishing touches on the final legal adoption documents.

A qualified agency will handle many of the critical elements of an adoption, which typically include conducting of a home study, getting the needed consents, and advising the adoptive couple on any state-specific legal requirements that may need to be met.

For many folks looking to adopt, the question often comes up as to whether a private or public adoption agency is best. It should be remembered that private agencies tend to provide extensive counseling to the prospective parents. The counseling services offered by private agencies usually include that for the couple themselves, the birth parents, and the child being adopted, assuming that he or she is old enough to warrant such a service.

Thoughtful counseling at this emotional time can be of great benefit to all parties involved in the adoption process. This usually includes practical advice along with help on all the complex legal issues that can accompany the adoption process. It is especially important that there be protections for the adoptive parents, which is why the birth parent is typically included in the early stages of the counseling process. (It has been shown that a birth parent is less likely to change her mind when the time comes to place signatures on the actual adoption consent forms following the baby's birth.

Of course, there is a down side to using a private agency as these groups are known for being terribly picky about who will be chosen as adoptive parents. Quite simply, this is due to the law of supply and demand. There is usually a surplus of couples looking to adopt, while the pool of available children is much more limited. These agencies tend to select out parents based on age, marital status, income, health, religion, sexual orientation, family size, and personal history (even criminal conduct).

Public agencies, on the other hand, usually have many children ready to be adopted. However, these kids are commonly older or have special needs. If you and you spouse are looking for a newborn or infant, a public agency may not be the best avenue for you. Another thing to remember is that public agencies generally do not provide the range of counseling and other services that the private ones offer. This is typically reflected in the cost, which is much lower for those choosing a public adoption agency.

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Once again Hollywood is abuzz with stories of the marital rift between Oscar-winner Sandra Bullock and so-called bad boy and biker Jesse James. With rumors of divorce now swirling around the couple, it would appear that once again even the rich and famous can end up at odds with each other, although according to the tabloids this is mostly the husband’s making.

As a Birmingham divorce lawyer and family law attorney, I have represented numerous clients across Alabama. From what I’ve seen, it makes no difference if you live in a large city such as Birmingham, Montgomery or Huntsville, or smaller municipality like Fort Payne, Fairhope or Muscle Shoals, separation and divorce can become the option of last resort for some folks. As for Ms. Bullock, this appears to be the case as well.

According to reports, Bullock has may be on course to divorce her husband of five years, with the public weighing in on the subject as well from coast to coast. The recent revelations of James’ alleged affairs with five separate women, including tattooed model Michelle McGee have apparently opened Bullocks eyes to her husband’s possible infidelity. The news of McGee’s admission that she had an alleged 11-month affair with James seems to have left little question in Bullock’s mind where she stands in the equation.

Based on new articles, close friends of the Hollywood star have said that Bullock has “definitely” made up her mind to divorce James. She has apparently been consulting a lawyer and is preparing to for divorce. Other insiders state that James is hoping that his stint in rehab and some privacy will help him recover and save his marriage.

Describing him as a “broken man,” one of James’ friends is on record as saying that James is still in love with his wife and that the whole affair has destroyed his “entire universe.”

According to news reports, 40-year-old James recently checked himself into an undisclosed treatment facility to “deal with personal issues" and to try and save his marriage. In a public apology last month, James apparently admitted to having poor judgment in regard to the extramarital affair.

Sandra Bullock 'definitely' wants divorce, NYDailyNews.com, April 2, 2010

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One fact of divorce in Alabama, no matter what town or city you call home -- Huntsville, Tuscaloosa, Decatur, Vestavia Hills or Talladega -- alimony and child support are a definite possibility depending on your means and the needs of your soon-to-be-ex spouse. While most individuals will fight hard not to pay alimony to a former partner, paying child support is usually accepted, albeit grudgingly by some.

As a Birmingham family law and divorce lawyer, I understand how some consider child support to be a burden, especially when that party doesn’t get to see the kids on a daily basis. Over time however, even the best provider may ask himself, “do I need to keep paying support for these nearly adult-age kids?”

The fact of the matter is that in Alabama, the age of majority is 19. What this means is that child support comes to an end once that teenager hits 19. (Be careful, though, because there is a provision for post-minority support payments when it comes to helping with college tuition and such). But for our purposes here, 19 is the age at which child support is terminated.

That being said, I have run into situations where people have asked me whether or not an 18-year-old who joins the military or otherwise is on his or her own still qualifies for child support. Does that parent’s obligation to pay support end under these kinds of circumstances?

Simply put, a parent cannot simply cease payments because they feel the child is now functioning as an autonomous individual, and neither does the child support automatically stop. However, Alabama law does provide for these kinds of situations, such as an 18-year-old joining the military.

In such instances, Alabama law allows the parent who is providing child support to file a petition with the court requesting that the child in question be declared “emancipated.” If the court agrees and the petition is granted, then the child support will usually be terminated legally.

Depending on the circumstances, it is possible that a judge will concur that the child is emancipated and subsequently grant the request for termination. Keep in mind that this is completely up to the discretion of the court and is not necessarily guaranteed . As with any family law issue, it’s wise to seek the advice of a qualified legal professional.

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Suspicion of infidelity is one of the first steps toward a broken marriage. But what if your spouse’s transgressions are not with another person, but with alcohol or drugs? Loss of love and trust through substance abuse can ruin a marriage as quickly as an affair. This is true whether you live in Montgomery, Hoover, Gadsden or Muscle Shoals.

As a Birmingham divorce lawyer and family law attorney, I’ve seen many different scenarios leading to marital disharmony -- infidelity, inappropriate sexual behavior, financial irresponsibility, alcoholism and drug abuse, just to name a few.

More than once I have been asked whether or not one or all of these problems is grounds for divorce. When it comes to drug abuse by one of the partners in a marriage, I find that occasionally the spouse who is concerned about his or her partner’s addiction may want to have that individual tested for drugs. The question is whether this is a legitimate or practical request.

Simply put, if a spouse in a divorce action is interested in having the offending partner tested for illicit or prescription drugs, that party may file a motion with the court requesting testing. At this point, the judge presiding over the divorce case will make a decision as to whether or not that motion will be granted.

In Alabama, if custody of a child or children is an issue, as well as cases involving visitation rights, the judge will usually grant a motion. Typically, there must be some basis or reason for suspecting substance abuse on the part of a spouse. If the court is convinced of that there is merit to the request, then the motion for drug testing will likely be granted.

Divorce cases can be very contentious. Because of this, it’s not uncommon to have the other party respond to the drug testing with a motion of their own for the same or similar testing. In such instances, the judge will usually order both parties in the divorce to be tested. One caveat: Don’t be too sure that you will pass a similar test. It has been known for the spouse who initiated the testing to test positive for some substance that could negatively impact your side of the divorce action.

Depending on the jurisdiction, a court may require hair follicle testing, which is reportedly more accurate than other methods and also provides results that date back farther in time. Frankly speaking, anyone who uses drugs is likely not fit to raise children in the first place, which means that if you want custody of your kids, do not use drugs. The courts are not very sympathetic when substance abuse is indicated by one or the other spouse.

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Whether you live in Huntsville, Bessemer, Tuscaloosa or any of the dozens of cities and towns throughout Alabama, picking the right divorce lawyer can make the difference between a painful and costly divorce and a smooth and equitable split. Since nearly 50 percent of all marriages end up in divorce, this it is very important to make the right choices, not only in your future spouse, but also in your divorce and family law attorney.

As an experienced Birmingham attorney well versed in divorce and family law, I have assisted many clients through what can be a harrowing and emotionally difficult time in their lives. If children are involved, then the added pain and hard feelings can compound the situation to the extent that it affects even the couple’s friends and relatives.

Choosing the right attorney can alleviate some of the emotional anguish that inevitably comes from such a legal separation. Having counseled many individuals contemplating and going through divorce, I would like to provide a few key points for finding a good divorce attorney:

1) First and foremost, choose a lawyer who specializes in family law. This goes without saying. A family law attorney should be completed prepared with the correct paperwork and forms necessary to an Alabama divorce action, which also helps to speed things along and save you time and effort.

2) Make a determination as to the gender of your attorney. Some people are more comfortable talking to a lawyer of the same sex as themselves, but you must decide for yourself.

3) Choose an attorney who is knowledgeable about and has handled case in the particular county in which your case will be heard. Having a lawyer who is familiar with the local judges and other attorneys will help you in the long run.

4) Interview your candidate to see if he or she will fight aggressively for you if the going gets nasty, as it often can. You never want to “pick fights” with your soon-to-be-ex spouse, but you do need a lawyer who understands your circumstances and will act always in your best interests.

5) Seek out friends and family members who have been divorced to get their thoughts on what to expect and who helped them the most. Divorce is no cakewalk, but you should be able to find someone in your extended circle of friends who believes that their case was handled well and in a straightforward manner.

6) Never be afraid to switch lawyers if you feel that you are not being represented in the best way. Sometimes there may simply be a clash of personalities, but whatever the reason, you need to feel comfortable with the attorney who is handling you case because it means so much to you and your family.

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As a Birmingham divorce lawyer helping clients throughout Alabama, I understand the pain and anguish that people feel following a separation or conclusion of a divorce action. For folks who share children from a marriage that is now falling apart the hurt can go very deep, especially when custody comes into play.

No matter where you live in Alabama, be it Huntsville, Auburn, Madison or Opelika, divorce and separation are not easy. One issue that arises more often than not is that of relocation. It’s a sad fact, but in a society as mobile as ours and with an economy that is forcing people to look elsewhere for employment, relocation cases have become commonplace.

Once a divorce is final, it’s inevitable to have some tension between the custodial and non-custodial parents. However, this tension can elevate if the custodial parent needs or wants to move away and take the kids with them. In cases like this the non-custodial parents will desperately want to hang on to their relationship with the children, while everyone should consider the best interests of the kids as well.

The question that I get from folks is, Where does the law come down on the issue of relocation or “move away” cases? Naturally, many non-custodial parents want to know if they can prevent their former partner from physically relocating themselves and the kids. Similarly, the custodial parent wonders if he or she actually needs to get “approval” to move from the other, non-custodial parent.

Actually, there is an Alabama statute titled the “Alabama Parent-Child Relationship Protection Act,” part of the Alabama Code, Section 30-3-160. What this part of the law requires is for the custodial parent to submit written notice to the other party, the non-custodial parent, 45 days in advance of any intended move greater than 60 miles from his or her present residence.

The law regarding this required notice is very specific as to what should be included and in what form it should take. For instance, it must be delivered via certified mail. This is why it’s always important to consult a qualified family law attorney to be certain that you are following the letter of the law.

Once notice is given, the law gives the non-custodial parent 30 days to file a written objection  with the court. If an objection is filed, the court will then set a date to hear the individual parties and make a determination as to whether or not, in the judge’s opinion, the move is in the best interests of the children.

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