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

It seems that every year more and more parents ask me for advice regarding how to address the issue of divorce with their children.  Several factors must be considered, including the child's age, functional ability, personal strengths and weaknesses.  The first year after divorce is the most difficult because a great deal of what was once considered, "normal life" is changing for your children.  It is stressful on parents, but the negative effects on children can be buffered with smart parenting.  Get with your spouse and set some basic ground rules.   Rule number one,  Never argue with, or degrade your ex in front of the kids.  The best protection that you can provide for your child during your divorce is your own personal love and attention, combined with smart parenting tactics that have your child's social/emotional health at the forefront.  Two great articles addressing divorce with children www.nasponline.org/resources/parenting/divorce_ho.aspx , and divorce in blended families http://apahelpcenter.org/articles/article.php?id=41 , are recommended readings. 

Books for kids: 

"Was It the Chocolate Pudding?" A Story for Little Kids About Divorce by Sandra Levins (ages 2-6)

"I Don't Want to Talk About It":  A Story About Divorce for Young Children by Jeanie Franz Ransom

Ginny Morris and Mom's House, Dad's House by Mary Collins Gallagher

My Parents are Divorced Too:  A Book for Kids by Kids, Second Edition Melanie, Annie & Steven Ford as told to Jan Blackstone Ford

"What Can I Do?"  A Book for Children of Divorce by Danielle Lowry

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In Alabama, a party's separate estate is not automatically included in the Marital Property of the both spouses.  Likewise, a spouse's inheritance and gifts he/she receives, even while married, remains their own property, unless you move to convert the property into marital property.  You can covert your property into marital property by several means. Here are a few common examples:

•  You could deposit your inheritance or gift into a joint checking account that both parties have access to and regularly make withdrawals.
• Or you could inherit a nice beach house from your grandfather and you regularly take the family to the beach for vacations. The house is now marital property.

The court replies upon one key determining factor when it has to decide these issues.  The question invariably becomes, has the property been used "regularly for the common benefit of the parties in a divorce."

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The purpose of Alimony in Alabama is to preserve, as much as is possible, the economic living condition of the parties as they existed during the marriage. There is a duty to maintain the status of their ex-spouse until such time as the spouse is self-supporting or maintaining a similar status to the one enjoyed before the separation.

The two most important factors to be considered in determining alimony payments are:

1. The need of the spouse receiving alimony.
2. The ability to pay by the spouse paying alimony.

However, there is a laundry list of factors that courts do take into consideration:

• Standard of living during the marriage
• Age and gender of each party
• Length of the Marriage
• Bad conduct by a party that caused the divorce(adultery)
• Health of each party
• Potential for maintaining their standard of living without spouse

Alimony can result from long and short term marriages as well.

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The Alabama "venue statute," sets out the proper county to file your Alabama divorce actions.  Venue is just a fancy lawyer word for the place you file divorce papers. The Code provides several methods to establish proper venue.  Proper venue can be established in one of three ways:

1. You may file your divorce papers in the county where your spouse resides.
2. In the county where you resided with your spouse at the time of separation.
3. Or, if your spouse is a non-resident, the county in which he/she resides.

When both parties are residents of Alabama, divorce complaints can be filed in either the county in which your spouse resides, or in the county where you both lived before the separation occurred. It is also possible to file in any county you want, if your spouse agrees. 

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I was researching women's divorce issues and ran across an article published by The Modern Women's Divorce Guide. They have an excellent list of what a woman should do when preparing for a divorce. Check it out here. 

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Common law marriage in Alabama requires a showing of the following elements:

• Capacity
• Mutual agreement to enter a permanent marriage relationship
• Some public recognition of the relationship as a marriage
• A public assumption of marital duties and cohabitation

To establish a common law marriage, there must be clear and convincing evidence that the parties lived as husband and wife.  An important issue is whether or not the parties believed, or considered themselves to be married.  Other evidence can be used to establish a common law marriage , such as whether or not the couple shared household expenses, held joint accounts at the bank, or did they file joint tax returns.

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In order to have a valid marriage in the State of Alabama, the following conditions must be met:

• No one under the age of 14 has the capacity to contract marriage
• For any person under the age of 18 consent by a parent or guardian is required
• Both parties must be of sound mind
• Have the ability to contract marriage
• And the parties cannot be related within a prohibited degree
• Also, the Alabama Marriage Protection Act was passed in 1998 that specifies marriage is inherently a unique relationship between a man and a women.  A marriage contracted between individuals of the same sex is invalid in Alabama. ALA. CODE 30-1-19(b) (1975). The act also holds that the State of Alabama shall not recognize the marriage of parties of the same sex from other states.
• A marriage cannot exist without the mutual consent of both parties.  Since consent is lacking if a previous marriage existed, or when consent is procured by duress, a marriage is not valid when obtained under either circumstance.

Here is a link to some valuable information on the requirements for a marriage license in the State of Alabama.

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The Alabama Rules provide the following non-inclusive list of reasons for deviating from the child support guidelines:

1. Shared physical custody or visitation rights for periods of physical custody or care of children is substantially in excess of those customarily approved.
2. Extraordinary costs of transportation for purposes of visitation borne substantially by one parent.
3. Expenses of college education incurred prior to a child reaching the age of majority.
4. Assets or, or unearned income received by or on the behalf of, a child.
5. Such other facts or circumstances that the court finds contribute to the best interest of the child for whom support is being determined. A.R.J.A., Rule 32(A)(1)(e).

The existence of any factor above does not require the court to deviate from the guidelines, but may be considered by the court in doing so.  Furthermore, the court may deviate from the guidelines even without any of the above factors as well. 

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In case your feeling really ill about how much your ex significant other is taking you to the cleaners, read this article  from Forbes about the effects of divorce on the rich and famous. 

It is still hard to be sorry for a guy like Sir Paul McCartney.  Sir Paul, you really needed a better lawyer my friend.  No matter how much you think you love someone, in today's world, and when these kind of assets are in play, you should always, always obtain a prenuptial agreement. 

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A child has a basic right to receive support.  The parents obligation to provide such support cannot be removed except by a termination of parental rights, i.e. adoption.  The rules governing child support in Alabama can be found in the Alabama Child Support Guidelines, Alabama Rules of Judicial Administration, Rule 32.

The calculation of the support figure from the guidelines above is deemed correct unless shown otherwise.  The guidelines are not intended to be carved in stone. They are "guidelines" only. They are meant as a map to assist parties, lawyers, and judges in making more consistent awards of child support.

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Alabama Courts have wide discretion in child custody cases.  A child becomes a ward of the court in custody proceedings, and any matter affecting the child is a concern of the court. 

In Ex parte Divine , the Alabama Supreme Court enumerated twelve factors to be considered when deciding what is in the best interest of child in custody proceedings:

• Sex and age of the child
• Emotional, social, moral, material and educational needs of each child
• Home environments offered by each parent
• Parents age, character, stability, mental and physical health
• Parents capacity and interest in providing for the emotional, social, etc., needs of child
• Relationship between each child and each parent
• Relationship between children
• Effect on child of disrupting or continuing an existing custodial status
• Preference of child, if the child is of sufficient age and maturity
• Recommendations of experts
• Any available alternatives
• Any relevant matter

Past performance is often crucial in determining custody.  However, a spouse's prior performance may not be an accurate portrait of their future performance once the realities of a divorce are present.  A spouse who used to work at home taking care of the kids, may not be able to stay home full-time once the divorce is final.  Their financial situation, time constraints and other realities have changed.

Thus, a court has the ultimate power in determining how your children are raised in a custody proceeding. This is just one more reason why my firm advocates divorce mediation and collaborative legal processes whenever possible.  You should be the ones determining your child's best interest, not the courts. 

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Alabama law recognizes twelve grounds for granting a divorce.  The twelve grounds recognized by Alabama law are as follows:

• Incapacity
• Adultery
• Abandonment
• Imprisonment
• Crimes Against Nature
• Habitual Drunkenness/Drug Addiction
• Incompatibility of Temperament
• Mental Incapacity/Insanity
• Irretrievable Breakdown
• Pregnancy
• Violence/Cruelty
• Non-Support & Separation

You do not need to know that much about the grounds for divorce in Alabama.  Most divorces today are "no fault" divorces, such as incompatibility.  However, if your husband or wife has committed "adultery," or committed, heaven forbid, a "crime against nature", that fact may benefit you significantly in any divorce settlement.

All you really need to get a divorce in Alabama is 1) jurisdiction and  2) residence.  What that really means is one of you has lived in Alabama for at least six months.

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