Archive for 'Divorce'
Alabama Grandparent Visitation Statute Held to be Unconstitutional
Posted on 16. Dec, 2011 by Alabama Divorce Lawyer, Jim Jeffries.
The Alabama Supreme Court held in June of this year that the State’s grandparent visitation statute (§30-3-4.1, Ala. Code 1975) is unconstitutional and therefore unenforceable. As a result, there may be no viable way for grandparents to obtain visitation rights with their grandchildren through a divorce court.
In Ex parte E.R.G., [Ms. 1090883, June 10, 2011] ___ So. 3d ___ (Ala. 2011) the Court found that the right of a fit parent to determine, among other things, who has contact with their child is a “fundamental” right and therefore any law interfering with that right must pass the “strict scrutiny” test to be constitutional. This test is the most stringent one a court applies to determine the validity of a statute and our Supreme Court held that it was not met in this case.
The question of how this ruling affects older cases where grandparent visitation has already been awarded was recently addressed in Burnette v. Burnett, [Ms. 2100935, December 9, 2011] ___So. 3d___ (Ala. Civ. App. 2011). The Alabama Court of Civil Appeals held that a change in substantive law, such as a finding that a statute is unconstitutional, should be applied retroactively. As a result, the court overturned a previous award of visitation to grandparents.
Interestingly, the Alabama Legislature amended the grandparent visitation statute to make it more difficult for grandparents to get visitation. The court in Burnett mentioned this and specifically stated that they were not addressing the question of whether or not the amendments to the statute were constitutional since they were not in effect at the time of that decision.
What does this mean for parents and grandparents dealing with visitation issues? It’s good for parents and definitely not good for grandparents. Any parent who does not want to continue sending their child to visit grandparents can now file a motion to terminate that visitation order and have a good chance of succeeding. Grandparents who are still willing to fight for visitation will have to rely on the recent amendments to the statute and be willing to defend the constitutionality of those amendments until our courts determine whether the statute will survive.
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Transportation Costs to Exercise Visitation Are a Legitimate Reason for a Court to Reduce a Child Support Obligation in Alabama
Posted on 10. Mar, 2011 by Alabama Divorce Lawyer, Jim Jeffries.
In Alabama, the calculation of child support is governed by Alabama Rule of Judicial Procedure 32. ”Rule 32″ as it is called contains very specific instructions for how a non-custodial parent’s child support is to be determined. Once the calculation has been completed, judges are obligated to order that parent to pay that specific amount without deviation unless there is a specific reason to make the ordered amount higher or lower. One of the reasons to deviate specifically mentioned in Rule 32 concerns the situation when one parent lives far enough away from their children that they incur substantial costs to travel to see their children. These days travel to see your children in their hometown can get expensive with gas or airplane fares rising every day, not to mention hotel costs and meals at restaurants. This can be an important issue to raise in several situations.
If you are the non-custodial parent and you have to move away from your children, then this can be the basis of a motion to reduce your child support. That is especially true if you are going to be paid less money to work at your new job. In that case you can request a reduction for both reasons. Of course, anytime you are divorced and there are children involved, there is always a chance that you will have further disagreements that result in potential litigation before a judge. As a result, documenting these extra expenses with receipts, bank records and/or credit card statements is essential to giving yourself a chance to get the judge to agree with your position. Remember, the person paying child support is always the one that bears the burden to prove payment of support no matter what form.
Travel costs can also be important if you are the custodial parent and you are the one that is moving. If you notify your Ex that you intend to move and they object, litigation attempting to get a judge to allow the move can be complicated, time consuming and expensive. Offering to reduce the child support they are paying as a way to get them to agree to the move is one of many tools you can use to settle the dispute.
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Skype and “Virtual Visitation” in Alabama
Posted on 25. Feb, 2011 by Alabama Divorce Lawyer, Jim Jeffries.
I was walking down the hallway of my house the other night and I heard my 14 year old daughter having a conversation with what sounded like another boy in her room. It was late and I knew no one was there but, of course, I immediately headed that way. When I opened the door to her room I saw her sitting on her bed with her new school laptop in front of her and she was talking to and laughing at her computer.
It turns out she was having a Skype video conversation with her Uncle who lives in Boston, Massachusetts. As I leaned in to view the screen I saw my brother-in-law and also saw myself in the bottom of the screen. I waved and said hello and he did the same back to me. Amazing!
I have had several opportunities to put provisions in agreement divorces or relocation case settlements that obligate one party or the other to have broadband connections to facilitate communications with the other non-custodial parent but this was my first personal experience with it in video form. It really was a great way to communicate and was much better than a simple phone call would have been.
Alabama has no statutory obligation requiring a court to consider Skype or other forms of ”virtual visitaion.” I am also not aware of a published opinion where this was required by a judge after a hearing. However, with the economy being in the condition it is, causing both custodial and non-custodial parents to consider relocating to find jobs, the technology that allows this sort of communication can help improve an otherwise bad situation. The technology has defenitely come a long way. Video conversations are certaily no substitution for spending time with your children but they absolutely can help give the feeling that your children are not so far away.
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How Does One Stop The Obligation To Pay Child Support In Alabama
Posted on 10. Jun, 2010 by Alabama Divorce Lawyer, Jim Jeffries.
A Parent who has been previously ordered to pay child support is obligated to pay until the child’s 19th birthday. Unless there is a specific date in the divorce decree or subsequent order which states that the support can be terminated on that day, a person is technically obligated to pay support until the Judge issues an order terminating the support requirement. A person can be ordered to pay support past the child’s nineteenth birthday if the child is going to college and the parent has the financial ability to pay or if the child is a “special needs” child and is mentally or physically unable to provide for themselves once they reach the age of 19. Any action intended to get one parent to pay college support MUST be filed prior to the day of that particular child’s nineteenth birthday. If not filed by then, the court forever loses jurisdiction to order college support.
If there are multiple children who are receiving support pursuant to your current order and one has turned 19, that is a sufficient basis to modify the payor’s support. The new order will be recalculated based on the parties’ gross monthly incomes and other A.R.J.A. 32 factors existing at that time but will not include support for the child that recently turned 19.
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Divorce Attorneys Finding GPS Useful
Posted on 27. May, 2009 by Alabama Divorce Lawyer, Jim Jeffries.
The UPI ran this article entitled, Divorce Lawyers find GPS Useful. In it they describe how many divorce lawyers are increasingly using data from global positioning satellites to track vehicle movements and location in order to prove adultery. I have found this occurring more frequnelty in my Alabama divorce cases as well. The article correctly points out that one of the advantages of using a GPS instead of hiring a private investigator is the cost savings. You can hire a p.i. for several hours at a time over several different days and you may or may not time it correctly to gather evidence. On the other hand, the GPS data will be there all of the time and isn’t charging you by the hour.
The article also states that an advantage to the GPS is that an owner of the vehicle can conceal it on the car. My only word of caution about that is that the laws vary from state to state and are constantly changing. So, before you go put a GPS on your vehicle that your spouse doesn’t know about, you should run it by your divorce lawyer first.
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7 Steps to Survive Divorce
Posted on 20. May, 2009 by Alabama Divorce Lawyer, Jim Jeffries.
I came across this excellent article entitled, 7 Steps to Help You Get Through Divorce. It doesn’t appear that the author is an attorney, but his advice is right on the money. If you are facing a divorce in Alabama (or anywhere, for that matter), the article is worth a read.
I appreciate the fact that his first step is to hire a divorce lawyer. In his words, “a lawyer will be your best friend for how ever long you divorce is active.” I would only add, that the right divorce lawyer will be your friend for how ever long your divorce case is active.
Some of his other steps were included in my own series on Alabama Divorce Preparation.
Finally, I like the fact that he concludes with the important reminder for parents to never use the child as leverage in a divorce. I see that too often, with devastating consequences.
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Collaborative Divorce: A Kinder, Gentler Approach?
Posted on 18. May, 2009 by Alabama Divorce Lawyer, Jim Jeffries.
Working Together to Resolve Divorce
The Orlando Sentinel posted an article today on Collaborative Divorce. Collaborative divorce is an alternative way to resolve a divorce case without resorting to litigation. I was actually trained as a collaborative lawyer in 2001. However, it has been slow to pick up steam in Alabama. In fact, many divorce attorneys in Alabama that I have spoken to have expressed their reluctance to hanlde cases collaboratively. I think that will change. As it becomes more common and more people find out about it, there will be a market demand for it.
The only real down side to collaborative divorce can be the expense. But, it is far less costly than a traditional adversarial divorce.
I have been working on something called the No Nonsense Divorce that I think will provide another viable option for families in Alabama trying to cope with divorce. It is a way for divorcing couples to streamline the divorce process and to resolve their case for a fixed fee that is far less than would be incurred in litigation. I’ll be posting more about No Nonsense Divorce here as soon as we have all of the parts in place.
Until then, I encourage you to read the article linked above on Collaborative Divorce. It captures some of the same themes that I urge my clients to consider in the way we handle their divorce case.
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How to Stop Your Divorce
Posted on 15. May, 2009 by Alabama Divorce Lawyer, Jim Jeffries.
I read a lot of articles on divorce. I am always tracking what is going on in my field and trying to pass on good information to the readers of my Alabama Family Law Blog. Recently, I have noticed a lot of articles with the headline: How to Stop Your Divorce! I’ve noticed that most of these lead to sites that are selling some product to people facing divorce. Perhaps, some of these products are worthwhile. But, I can’t help but think some of these are simply an attempt to play on the emotions of someone going through one of the worst times of their lives.
The fact is, under Alabama divorce laws, if one of the spouses insists on a divorce, they are going to get it. There is nothing you can do to stop. You can make it take longer, and you can make it cost more money (but why would you want to?), but you can’t stop it. I tell my divorce clients all of the time, “It takes two people to decide to get married, it only takes one to decide to get a divorce.”
Can you try to convince your spouse to reconcile? Of course. Can you try to convince a spouse considering a divorce to not file and give it another chance. Sure. I always encourage reconciliation. And, if you are struggling in your marriage, a good book to take a look at is, The Divorce Lawyer’s Guide to Staying Married. The author is a divorce lawyer and in it, she interviews other divorce lawyers around the country. Because we see so many marriages that end in divorce, divorce attorneys have a unique perspective on the issue.
But, as far as these websites that promise to stop your divorce case, I would just be careful. A few sessions with a qualified marriage counselor or pastor will have a much better chance of being effective than an e-book slapped together by someone trying to capitalize on your desire to avoid divorce.
photo credit: raulsantosdelacamara
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Alabama Divorce Preparation
Posted on 13. May, 2009 by Alabama Divorce Lawyer, Jim Jeffries.
A while back, I wrote a series of articles on Alabama Divorce Preparation. The article explored what someone facing divorce ought to do to best protect themselves under Alabama divorce laws. Recently, I have noticed that many people have been coming to this blog looking for information on Alabama divorce laws, but particularly on preparing for divorce.
For that reason, I thought it would be helpful to direct you to the final article I wrote on Alabama Divorce Preparation. If you visit that page, it will show you each of the 13 Steps I outlined and includes a link so you can get more information for each one. I hope it is helpful to you.
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Alabama Divorce Statistics
Posted on 06. May, 2009 by Alabama Divorce Lawyer, Jim Jeffries.
Alabama ranks high in divorce rates.
According to the U.S. Department of Public Health, Alabama’s divorce rate was 39% higher than the national rate in 2007.
A recent article in the Time Daily, reports that many churches in Alabama are responding by implementing Divorce care programs for their communities. Encouragingly, the article relates that many communities are also responding by implementing programs to strengthen marriage. In my experience as a practicing divorce attorney in Alabama, that is where the focus should be.
I encourage you to read the article.
photo credit: andronicusmax