Archive for 'FAQs'
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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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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Need an Alabama Divorce Lawyer? Ask These 9 Questions to Find Out
Posted on 11. May, 2009 by Alabama Divorce Lawyer, Jim Jeffries.
Maybe you are facing divorce, and you are not sure whether you need a lawyer to represent you. You could represent yourself. Of course, representing yourself would save you lawyer’s fees. But, you don’t want to be taken advantage of and you want to make sure you get a fair result. In fact, if you represent yourself you potentially risk giving up important rights. So how do you know whether you need a lawyer or not?
I recently wrote an article entitled, Need a Divorce Lawyer? 9 Questions You Must Ask to Decide Whether You Need a Divorce Attorney. If you are facing divore and considering hiring a divorce lawyer, I recommend you check it out.
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Telling the Kids About the Divorce
Posted on 30. Apr, 2009 by Alabama Divorce Lawyer, Jim Jeffries.
How do I tell the children about the divorce?
It is one of the toughest tasks that accompanies a divorce. How do we tell the children? I recently came across a good article that advised parents facing divorce to avoid these three mistakes when telling the children:
- Pressuring the children to make a choice,
- Forgetting to emphasize that the children did not cause the divorce, and
- Sharing information that only adults should be aware of.
You can read the entire article here. In the article, the author elaborates on each point. I want to specifically emphasize the third point. Divorce attorneys see this mistake made all of the time (sharing information with the children that only adults should be aware of). It is typically done when one parent is hurt and mad at the other because they have somehow been wronged. Often it is when adultery is involved. The parent decides to tell the children the reason mommy and daddy are getting divorce is because “your father has a girlfriend” (or something like that). When asked why in the world they would tell their children this, they justify it by saying, “the children deserve to know the truth” or “I was just being honest with them.”
DO NOT DO THIS. Really. It is incredibly selfish and immature and it hurts your children. I know there may be some circumstances where it may be necessary. Maybe the child is 17 and the affair was with a teacher at the school and so all of her friends are going to find out (yes, I’ve seen it happen). But, even in those situations, slow down. Check your motivation. Are you really protecting your child by telling her? Is it really necessary? I find that often it is not. Don’t do it to your children. The divorce is going to be hard enough on them.
Finally, I would add one more to the author’s list: Remind them that both mom and dad still love them. Children in divorce need to be reminded that the breakup of the marriage does not mean that either parent no longer loves them. This is VERY important. Even if you are the spouse who did not want the divorce, make sure they know that the other spouse still loves them and the divorce does not mean they don’t. They need to hear that.
NOTE: The author of the article offers some resources at the end of the article to assist in telling the children about divorce. I have not reviewed them myself, but I have talked to the author in the past and I have heard very good reports about those resources. You may want to check them out if you are facing divorce and are not sure how to tell the kids.
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The Style of Your Divorce Lawyer: The Lamb, the Pit Bull and the Fox
Posted on 24. Apr, 2009 by Alabama Divorce Lawyer, Jim Jeffries.
I am frequently asked by prospective divorce clients if I will be aggressive… or a pit bull… or a shark. They phrase it differently. But, many folks facing divorce think that what they need is the most aggressive divorce lawyer in Alabama (or whatever jurisdiction they happen to be in).
In my years of divorce practice I have seen lots of lawyers handle divorce cases. There are as many different styles as there are different lawyers. But, I have also noticed three recurring styles of lawyer in particular. I call them the lamb, the pit bull and the fox.
The lamb is the lawyer that just sort of goes with the flow. They are reactive, not proactive. They want to avoid confrontation at all costs and that means they also want to avoid going to court at all costs, even if it means convincing their clients to settle for significantly worse terms than they should. The lamb may even be afraid to try the divorce case. He will rarely, if ever, tell his client that he should not sign a settlement offer that is being extended from the other side even if that offer is clearly inequitable. Thankfully, there are not a lot of lambs that last very long as divorce lawyers.
Much more prevalent is the pit bull, who is exactly the opposite. They hate to settle cases. In fact, some of them won’t do anything proactive to try to settle their divorce cases. It is almost as if they take some type of perverse joy in seeing the “blood running in the streets.” The truth is that often they do this simply to develop and maintain a reputation as “Bad Leroy Brown…baddest man in the whole damn town.” When a spouse is angry and in the emotional stage of wanting to exact revenge, they want to be the name on everyone’s lips when that aggrieved spouse asks their neighbor who is the meanest SOB in town. And, so they work hard to maintain that reputation because it makes them a lot of money.
The sad part is that acting like a pit bull is rarely, if ever, in their own client’s best interests. Of course, the pit bull’s main concern is not their client. If you know anything about pit bulls, you will know that they are very aggressive and vicious. But, they are not thinking animals. They act only on instinct. When they fight, they not only destroy the dog they are fighting, but by their own actions hurt themselves and anything else around them (which often includes their own client’s and their client’s children).
The pit bull is aggressive for the sake of being aggressive, not for any long-term benefit it brings their client. Often people going through divorce will think they need an aggressive lawyer to represent them in their divorce. They are wrong. What they need is a lawyer who is assertive. There is a difference. It is the difference between the pit bull and the fox.
The fox is wise and cunning. He sees the big picture. The fox is assertive when he needs to be, compromising when it benefits his clients’ long-term best interests, and always aware of the many different consequences his actions have on his clients. He stands on principle. Yet, he is a strong advocate for his client when it promotes his client’s long-term best interests. He recognizes that reaching a fair settlement is always preferable to trying the case and leaving it up to the judge. Yet, he also knows that if a fair settlement is not forthcoming, then he must be willing and able to prepare to effectively litigate the case in court.
When choosing a divorce lawyer, you should avoid the lamb and the pit bull at all costs. Instead, find yourself a fox.
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What is mediation?
Posted on 24. Apr, 2009 by Alabama Divorce Lawyer, Jim Jeffries.
Mediation is a process where a neutral third person (in Alabama it is usually a lawyer trained in mediation) assists the parties in resolving the issues in their divorce case. Mediation is not binding, which means that the mediator does not make decisions about the case. The mediator’s role is to try to facilitate an agreement between the parties. So, unlike a trial, the final decision making authority lies with the parties (with counsel from their lawyers).
Mediation can be very effective and has successfully led to the resolution of many cases. There are some financial costs involved. So, if you think it may be appropriate for your case, I would get your lawyer’s opinion about whether they agree that your case is a good candidate for mediation or not.
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Can I Change Lawyers?
Posted on 24. Apr, 2009 by Alabama Divorce Lawyer, Jim Jeffries.
Yes, ultimately it is your decision to work with the lawyer you choose. But, you should understand that switching lawyers in the middle of the case can (and likely will) costs you more money and may lead to delays in getting the case to trial as the new lawyer has to get up to speed.
You will want to make sure you do not change lawyers right before your court date unless you are certain that the case can be continued (or the new lawyer can be ready to try the case on short notice). You do not want to be forced to go to trial without a lawyer because you fired your original lawyer and the judge would not grant a continuance to allow the new lawyer to be prepared. It does happen.
Finally, you should expect that your original lawyer will have to be paid any monies you owe him before he will turn over your file to any subsequent lawyer you hire.
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Are the fees I pay my divorce lawyer deductible?
Posted on 24. Apr, 2009 by Alabama Divorce Lawyer, Jim Jeffries.
Only those fees paid to your divorce lawyer that are directly attributable to tax advice and/or related to the production of taxable income (such as alimony) can be deducted.
You may want to ask your lawyer at the conclusion of the case if she can give you a breakdown of what portion of the fee you paid her, if any, was related to tax advice or the production of taxable income. If the case does not involve alimony or other tax issues (for example, the sale of a house or stocks or the division of a retirement account), you may not be able to deduct any of the fee.
If you have specific questions related to this issue in your case, talk to your lawyer or tax advisor.
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Can I have my spouse tested for drugs?
Posted on 24. Apr, 2009 by Alabama Divorce Lawyer, Jim Jeffries.
If one spouse in a divorce case wants to have the other spouse tested for drugs, they can file a motion and the Judge will decide whether to grant the request. Generally speaking, if custody or visitation is an issue, and there is some reason for suspecting abuse, the Judge will grant the request and require the drug test.
One warning that I give all my clients is that if they request a drug test, assume that the other side will also request one of them and that the Judge will order both parties to be tested. Too frequently I have had my own clients tell me they wanted their spouse tested and that they didn’t mind taking a drug test themselves because there was no way the wouldn’t pass it. Then inexplicably (the client is always shocked) their spouse passes and they fail.
Do not put yourself (and your lawyer) in that position. In our jurisdiction the Courts are requiring hair follicle tests which purportedly are more accurate and test back farther in time. Whether that is true or not, you don’t want to test positive for drugs on the drug screen that you demanded be taken! Of course, the best advice here (particularly if custody of children is at issue) is that if you are using drugs, you don’t need to have custody of your children. Or, the converse, if you want custody of your children, do not be using drugs.