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

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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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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Let’s assume that you’re embroiled in a divorce action with your soon-to-be former spouse, who initiated the case. Whether you live in Montgomery, Dothan, Decatur, or Auburn, or anywhere in Alabama, divorce is an emotional and heart-wrenching process especially when one party doesn’t see it coming. Add children into the equation and you have potential for one of the saddest and demoralizing episodes in your life.

Being a family law and divorce attorney practicing in the Birmingham area, I have represented many clients who found themselves in the throes of a painful divorce proceeding. Part of my job is to try and make the process as easy and straightforward as possible while attempting to provide some comfort and guidance to my clients. In some instances a spouse may be so upset that they literally want to stop the divorce in its tracks.

But is this actually possible or even advisable? It’s easy to say, “I want to stop this here and now.” In reality, it’s a different story entirely here in Alabama. The sad truth is that once one spouse is committed to getting a divorce, there is no way the other party can turn it off. Short of convincing your soon-to-be-former partner to pull the plug, that’s just the way Alabama divorce law is written.

In Alabama, if one of spouse insists on a divorce, that individual is going to get his or her way no matter what. And while you and your attorney can make the divorce process take longer, you can’t stop it. As they say in the halls of divorce court, it may take two to get married, but it only takes one to get divorced.

On the topic of reconciliation, you certainly can appeal to the other party to try and make the marriage work, but most divorce actions are an indication that the marital union is probably broken and no amount of energy is going to fix it.

If you know in your heart of hearts that your marriage was on its last legs when your spouse initiated the divorce, then it may be wise to follow their lead and make the best of a bad situation. This is where a qualified divorce lawyer and family law attorney can really help.

If you insist on making it work, it’s a good idea to bring in a third party who is not emotionally torn between either spouse. Schedule some sessions with a qualified marriage counselor or church pastor. If both parties are committed to making the marriage work, then these professionals can perhaps help you toward making things work better.

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How much information is too much information? Going through a divorce in Alabama can be a difficult journey. Regardless of whether you live in Mobile, Birmingham, Huntsville or any of the hundreds of cities and towns across the state, the subject of divorce or legal separation can be a minefield. Spouses who are splitting up have a hard enough time discussing details with family and friends, but what of the children? How much should you share with them, if anything?

As a Birmingham Divorce Attorney practicing throughout Alabama, I have seen it all when it comes to separation and divorce. I feel the heartbreak and sense the hard feelings that can arise during this kind of life-changing event. But my knowledge and years of experience have given me the tools to help my clients make it through one of the toughest times of their life.

For sure, one of the most difficult aspects of divorce is the effect it can have on children. Divorce can be extremely trying especially where kids are involved. In many instances, my clients confide in me by asking how they should break the news to their children. Quite often, they don’t even know how they should act or behave toward their kids once a divorce has been finalized.

Of course, it can be difficult to take your children’s needs into account during the process of a divorce in Alabama. There are many and varied aspects to the process including Spousal support, division of assets, and guardianship.

If you are considering divorce, or know someone who is going through or contemplating such an action, you may want to keep the following items in mind regarding the younger members of the household. Children need and have the right to the following, especially in times of family upheaval:

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One of the biggest concerns among parents going through a divorce is the law’s affect on the custody of the children. In this respect, couples without kids have less to worry about, but having a qualified family law and divorce attorney at your side is the first step toward a better outcome. Here in Birmingham, and across Alabama as well, the courts have a great deal of discretion when it comes to child custody cases.

In any custody proceeding, the child or children in question become wards of the court, and as such the court is entirely concerned with any issues affecting those children. For example, in Ex parte Divine, the Alabama Supreme Court listed a dozen factors that must be considered when deciding upon the best interests of a child during a custody proceeding. These include:

• Sex and age(s) of the child or children
• Emotional, social, moral, material and educational needs of each child
• Type of home environment offered by each parent
• Each parent’s age, character, stability, and mental and physical health
• The individual parent’s capacity and interest in providing for the emotional, social, etc., needs of child or children
• Relationship between each child and each parent
• Relationship between the children themselves
• Effect on the children that disrupting, or continuing, an existing custodial arrangement would possibly cause
• Any preference(s) of child or children, assuming they are of sufficient age and maturity
• Recommendations of experts
• Any available alternatives
• Any relevant matters

Understand that past performance is often quite crucial in the court’s determination as to custody of a child. However, a spouse's prior performance may not be an accurate portrait of their future performance once the realities of a divorce become known. For example, 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. This happens frequently as the financial situation of one of the two parents usually changes substantially after the divorce. The same can be said for his or her time constraints and other realities, which may have changed as well.

Because of this, the court has ultimate power in determining the custody situation with each child during the proceedings. This is just one more reason why my firm advocates divorce mediation and collaborative legal processes whenever possible. Parents should be the ones determining your child's best interests, not the courts.

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Alabama is a state that recognizes legal separation. As a Birmingham divorce attorney, a certain percentage of my clients typically ask about this option as an alternative to divorce. Legal separation, which is sometimes referred to as "judicial separation," "separate maintenance" or "divorce a mensa et thoro" (translation: "divorce from bed-and-board"), is way in which a married couple may legally formalize what can be a de facto separation while at the same time remaining legally married.

People choose legal separation for a number of reasons, but it usually is done if there is still some hope of saving the marriage, or if one or both of the parties (or even their families) have a moral or religious objection to divorce.

For the state of Alabama to recognize a legal separation, the parties shall enter a decree of legal separation if 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 implied above, a legal separation does not necessarily lead to a divorce. It does leave the door open to reconciliation, in which case the parties usually need not do anything more, as they are still legally married. 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.

As an Alabama family law and divorce lawyer, I have handled many legal separations as well as helped cleints through divorces. The law can many times be complex and confusing. A qualified legal professional with experience in family law can be a great help when guiding people through the legal process during what can be a truly difficult and emotional time.

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The Alabama Court of Civil Appeals recently ruled that a prenuptial agreement signed by future husband and wife-to-be one day before their wedding is valid and fully enforceable. Live and learn would be the motto related to this latest court ruling, since the document protected the groom’s millions, while the bride apparently will be entitled to the love of their relationship going forward. Should a divorce loom in their future, the wife has little or no recourse.

Actually, this is a lesson to anyone considering a prenuptial agreement prior to getting married. As a Birmingham family law and divorce attorney, I find this story quite sobering for clients and lawyers alike. The woman, in this case a real estate professional, was very familiar through her line of work with the power and durability of a signed legal document. But seemingly, in this instance, love had made her temporarily blind. Consulting a lawyer would have sharpened her vision substantially.

As a basis for its ruling, the Alabama Court of Civil Appeals found that the wife was not prevented from reading the agreement, nor was she unfamiliar with reviewing something as important as a legal document prior to placing her signature upon it. And the fact that the prenup was signed by both parties just one day before the wedding was not considered sufficient to invalidate the agreement.

Apparently, the court also found it was important that the wife-to-be knew the husband was a “millionaire” prior to the marriage, and therefore was aware of the general extent of his assets at the time she signed the agreement. She exhibited a brief moment of clarity, as reports show that she had attempted to seek legal advice. However, when she learned that her lawyer was not available, she decided not to seek alternate counsel and signed the document anyway.

Even the most uninformed can see here that it was a mistake for this woman to sign a prenuptial agreement without consulting an attorney. At the very least, it was a risky proposition to be signing such a document just one day before the wedding. For future reference, it is always wise for both parties to work on a prenuptial agreement together, and then to have attorneys for the individual parties review the document prior to signing. That way, there should be no unpleasant surprises -- and less chance for bad blood between the newly married couple.

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