How Can I Leave Something For My Family When I Die? I'm Not Rich!

It seems lately that a lot of young couples have asked me how they can care for their children financially in the event that one or both of them were to suddenly die.

One way to care for your children financially is to fund a trust for the purposes of buying life insurance for the benefit of the children.  They ask why can I not just purchase the insurance?  Well you can, but estate taxes can be changed by Congress at any time.  By funding a trust and having the trust purchase the life insurance you are able to pass the life insurance proceeds outside the estate, thereby reducing your estate tax liability.  For more questions on this topic and/or to schedule your free consultation please contact James Fancher at 205-912-8255.

Want to know more?  Check out our video with Tragg Tew from Alfa Insurance and other helpful videos on our YouTube channel.
-Blankenship Harrelson, LLP

My ex-boyfriend has taken my child from me what can I do?

If you and your ex were not married when the child was born and/or paternity has not been established a Court, you may use the police to assist you. Generally a person can be charged with Interference with Custody Ala Code §13A-6-45. This is a Class C Felony offense.

If you were married at the time the child was born and/or paternity has been established by the Court, you would need to seek relief from the Court. Let me know if I can help you. -James Fancher (205)912-8247
Blankenship Harrelson, LLP

My sister and I cannot find our mother’s original will. Can we use a copy?

Can you use a copy? Yes, generally you can probate a copy of a will. 

What is the difference between a self proved will and one that is not?

A self proved will is where you have a notary notarize the signatures of the witnesses. When you go to probate a self proved will there is no need for the witnesses to be found and brought in to testify to their signature.

If you have questions about your will or need to make a will, please give me a call. -James Fancher (205)912-8247
Blankenship Harrelson, LLP

I depend on alimony. What happens if my ex dies?

My husband/wife and I are going through a divorce. We have agreed that I will be the custodial parent and my soon to be ex will pay child support and alimony. If I did not have the child support and/or alimony I would not be able to take care of our kids. What can be done to protect me and our kids in the unlikely event my husband/wife were to pass away?

I would recommend that a life insurance policy be taken out on your soon to be ex. I would also require that the policy had you and/or the kids listed as IRREVOCABLE beneficiaries. By making the beneficiaries irrevocable the policy holder cannot later change the beneficiaries.

If I can help in any way with your will, child support or any family legal issues, please give me a call. -James Fancher (205)912-8247
Blankenship Harrelson, LLP

What happens to our children if we pass away?

My husband and I have a minor child together; how can we ensure they are placed in the custody of a person of our choosing if something were to happen to us?

This question goes back to the importance of having a will. Within a will you can name guardians, conservators, and trustees. I suggest to everyone that that they name not only a primary person but an alternate person as well. In general, the Court will do everything they can to place the individual in the position you have named in your will so long as they meet the requirements required by law.

If you have any questions please call me.
-James Fancher (205)912-8247 or email: james.fancher@bhattorneysllp.com
Blankenship Harrelson, LLP

If I die without a will, how will my property be divided?

If you are married, with no children, and your parents are deceased your spouse will take the entire estate.

If you are married and you are survived by a parent(s) your spouse will take the first $100,000 plus half of the remaining estate.

If you are married and you have children that belong to you and your current spouse, your spouse will take the first $50,000 plus half of the remaining estate.

If you are married and have children from a previous partner your spouse will take half of the estate. (Alabama Code § 43-8-41)

If that's not how you want your property divided, then you need to have a will. Call if I can help. -James Fancher (205)912-8247
Blankenship Harrelson, LLP

Why do I need a will?

A will is a device designed if executed properly to enable the testator (the person making the will) to leave his or her property to a devicee and/or several different devicees (the person(s) who receives the property from the individual making the will). In general by making a will you can ensure your hard earned property is left to whom you wish to have it.

If you don't have a will or need to revise yours, please give me a call. I'll be glad to help. -James Fancher (205)912-8247
Blankenship Harrelson, LLP

Can I draft my own divorce and have a lawyer look at it?

I was speaking with a friend a couple days ago who is going through a divorce. His wanted to know if he and his wife could reach an agreement and present it to the attorneys to draft. One of my earlier blogs discussed contested and non-contested divorces; however, I feel like we should cover some benefits of non-contested divorces again.

Why would you prefer to reach an agreement and avoid trial? Attorneys commonly refer to trying a case, like a roll of the dice; you never know what you are going to end up with. Parties who enter into an agreement without trial have more control over the outcome. In general your agreement is only limited by your creativity.

Reaching an agreement can greatly shorten the process. Let’s face it going through a divorce is stressful and the longer you are in the process the more stress involved. One big ticket item is you save money by working together to develop an agreement.

If you have a divorce settlement worked out with your spouse and you want someone to take a look at it, give me a call. -James Fancher (205)912-8247
Blankenship Harrelson, LLP

My spouse and I are getting a divorce and s/he has threatened to take my only means of transportation. What can I do?

A motion for a temporary restraining order can be filed with the Court. This is commonly referred to as a TRO. The Court can enter an order restraining your husband/wife from taking your vehicle; however, this does not guarantee that they will comply with the TRO.

If you are having similar issues in your divorce, you will most likely need to contact an attorney about how to handle it. If I can help in any way, please give me a call. -James Fancher (205)912-8247
Blankenship Harrelson, LLP

What is a Guardian Ad Litem (GAL)? What purpose do they serve?

GAL’s are appointed by the Court to represent an incompetent or minor party. The GAL’s whole purpose is to ensure the incompetent or minor party’s best interests are taken into consideration during Court proceedings and/or settlement agreements.

How is the GAL paid? Generally the expense of a GAL is split between the parties involved in the lawsuit. -James Fancher (205)912-8247

Temporary Child Custody and Wrongful Death Action

I temporarily lost custody of my child to my ex-husband/ex-wife and our child was killed in a car accident, who has the right to file a wrongful death action?

The individual who has physical custody of the minor child will have the exclusive right to bring the action if they file within six months of the minor’s date of death. After the six months has expired the non-custodial parent and/or a 3rd party representative may bring the action.

The case that covers this is Gladhill v. Lamar County Commission, which states that a temporary award of custody is a pendente lite order (meaning pending the outcome of litigation) and does not divest the individual who was awarded physical custody of the minor from bringing an action for wrongful death.  JDF (205)912-8247

My husband/wife and I are divorced. Who has the right to bring a wrongful death action on behalf of our minor child?

The individual who has physical custody of the minor child will have the exclusive right to bring the action if they file within six months of the minor’s date of death. After the six months has expired the non-custodial parent and/or a 3rd party representative may bring the action.

How will the proceeds be distributed?

The proceeds will be distributed in accordance with the Alabama law of intestate succession. (Alabama code §§ 6-5-390 and 6-5-391)  JDF (205)912-8247

Pre-nuptial Agreements in Alabama

In general, Alabama Courts are not overly fond of pre-nuptial agreements. For a pre-nuptial to be valid it must contain a preamble which must show the general intent of the parties; full disclosure of the assets involved (personal financial statement should be attached as exhibits); and each party must be represented by independent legal counsel. A case that you might want to read on pre-nuptial agreements is Barnhill 386 So 2d 748.  http://tinyurl.com/BarnhillvBarnhill   If you would like to talk over the option of a pre-nuptial agreement, let me know.  JDF (205)912-8247

Modification of Alimony Amount

Upon the happening of a material change in circumstances of one or both parties after a divorce, periodic alimony may be modified. The burden of proving the material change is on the Petitioner and factors to be considered include, but are not limited to, the following:

*The remarriage of the paying spouse;
*The receiving spouse’s employment since the divorce;
*The financial status and needs of the receiving spouse;
*Whether the receiving spouse is presently capable of self-support;
*The ability of the paying spouse to respond to the former spouse’s financial needs;
*Whether there are dependent children;
*Whether alimony was originally agreed upon;
*Whether there has been a material change in the financial situation of either, or both, of the parties;
*The health, age, and education of the parties, the earning ability of the parties and their probable future prospects, the duration of the marriage, the conduct of the parties with particular reference to the cause of the divorce;
*The length of time separating the initial alimony award and the modification hearing; and,
*Any other material and relevant circumstances as disclosed by the evidence in a particular case.

Not every one of the above factors are of equal importance and each case is decided on its own facts. It is important to note that in a situation where the payor of periodic alimony files a petition to modify or terminate alimony and the recipient makes no request for an increase, the fact that the recipient is unemployed or underemployed is irrelevant.

If you have alimony questions, please let me know. I'm glad to help. JDF (205)912-8247

This post came from posts by Melinda Parks. To see the original posting follow this link: http://mjparkslaw.wordpress.com/

Cohabitation Can Cut Off Your Alimony Check

In Alabama , periodic alimony is (for the most part) subject to termination upon proof that “the spouse receiving such alimony has remarried or that such spouse is living openly or cohabiting with a member of the opposite sex.” Ala. Code § 30-2-55 (1975). The question of whether a former spouse is living openly or cohabiting with a member of the opposite sex is a factual determination, which means evidence must be presented to the court and the court makes the final determination.

Factors to consider when determining whether a former spouse is cohabiting with a member of the opposite sex include, but are not limited to, the following:

*Permanency of relationship coupled with more than occasional sexual activity;
*Payment of debts by former spouse’s cohabitant;
*Purchase of clothes for former spouse by cohabitant;
*Whether the alleged cohabitant maintains the former spouse’s household by cleaning, cooking, washing and yard work;
*Receipt of mail by alleged cohabitant at former spouse’s residence;
*Keeping clothes and other personal items at former spouse’s residence; and
*Using the address for identification purposes.

In cases where the former spouse merely has a roommate of the opposite sex who pays rent and there is no evidence of sexual activity between the two, proof of cohabitation probably does not exist. If you have questions about this, please give me a call. JDF (205)912-8247

This article is from a post by Melinda Parks. To see the original posting follow this link: http://mjparkslaw.wordpress.com/

How Is Alimony Decided?

Factors Considered:
An award of alimony in Alabama is completely discretionary with the court. It is awarded only upon a showing of need by one spouse coupled with a showing of ability to pay by the other spouse. Unlike child support, there is no statutory formula to determine the amount or if any award will be made at all. In making its determination, the court will consider the following:

*The length of the marriage (rarely awarded in marriages of less than 12 years and generally reserved where one spouse has been dependent upon the other for most of the marriage);

*Each party’s respective earning ability and future earning prospects;
The ages and health of each party;

*The value and type of property owned by the parties;

*Conduct of the parties during the marriage (misconduct, such as infidelity, can be considered in determining whether to award alimony and how much to award);

*Any other factors the court deems relevant.

If you have any alimony questions, please give me a call. JDF (205)912-8247. This blog post comes from a post by Melinda Parks. To see the original posting follow this link: http://mjparkslaw.wordpress.com/

What is the difference between Alimony in Gross and Periodic Alimony?

Alimony in gross gives a present value to a spouse’s rights to alimony and is similar to a division of property. Alimony in gross cannot be modified after 30 days from the final divorce decree being entered and remarriage of the receiving party does not entitle the paying party to reimbursement. Additionally, the court does not have to consider the receiving party’s separate estate in determining the amount and the lump sum payment may be nontaxable.

Periodic alimony payments are made over time and differ from alimony in gross in several ways. First, the amount can be modified upon a showing of a material change in circumstances for either party after the divorce. Second, periodic alimony terminate upon remarriage or cohabitation of the receiving party or upon death of either party. Finally, periodic alimony is a tax deduction for the paying spouse and income for the receiving spouse.

This comes from a post by Melinda Parks. To see the original posting follow this link:  http://mjparkslaw.wordpress.com/
JDF (205)912-8247

What Is Alimony?

Lately a lot of people have been asking me questions about alimony.

A spouse who needs financial assistance after a divorce may, under certain circumstances, receive “alimony” from the spouse who has the ability to pay. Alimony is intended to preserve the economic status for both parties as it existed during the marriage. Payments can be made in a lump sum amount (alimony in gross) or in periodic payments for a determined amount of time. Rehabilitative alimony is sometimes awarded for a short period (e.g., 2 or 3 years) and is designed to help a spouse transition back into the job market.

This is from a post by Melinda Parks. To see the original posting follow this link: http://mjparkslaw.wordpress.com/

JDF (205)912-8247

The judge just signed off on my divorce...When can I get married again?

You cannot remarry until 60 days after the date of the Final Judgment of Divorce. If one party appeals then you cannot remarry during the pendency of the appeal, except to each other.

When is my divorce final?
A divorce is final after 30 days have past from the date the Judgment of Divorce was entered.

How long do I have to appeal my divorce?
You have 42 days from the date on the Judgment of Divorce.

If you have questions about divorce, please let me know.
JDF (205)912-8247

My Ex wants to choose my child's school. Who has the final say?

My ex-husband/wife wants our children to go to a private school, but I would like them to go to a public school.  Who has the final say so if we disagree?

Parents should always try to make decisions based on their children's best interests.  If you are unable to come to a joint decision the party with primary physical custody will have the final say.  There are divorce decrees that will specify which parent has the final say in certain areas of their children's lives, such as education, health care, and religion. 

Give me a call if you have questions about this.  JDF (205) 912-8247

What are the no-fault and fault grounds for divorce in Alabama?

No-fault grounds

• Incompatibility
• Irretrievable breakdown of the marriage
• Voluntary abandonment

Fault grounds

• A party being physically and incurably incapacitated since entering into the marriage state
• Adultery
• Imprisonment
• Habitual drunkenness or drug use
• Incurable insanity
• If the wife was pregnant by another man at the time of marriage
• Domestic violence or abuse
• Living separate and apart for two years

JDF (205) 912-8247

Why be afraid of a jury?

A jury is a group of people who, under oath, are given a question by a court and answer with an impartial finding of fact. People sitting on a jury must be qualified. For example, they must be legal citizen, they cannot have been convicted of a felony and they cannot have such prejudice for or against any element of the question submitted that they cannot be impartial. In its simplest form, a jury sees, hears, smells and sometimes touches evidence and determines the truthfulness of it.

Almost every defendant is silent or denies guilt. The jury hears the tension in the defendant’s voice, sees the expression of the defendant’s face, and determines if the denial is credible or not. If the defendant smells or acts intoxicated, the jury can decide if that simple fact impacts credibility or not. The jury considers all of the evidence that supports or challenges the defendant’s claims.

The jury tempers the law with what is acceptable in our community. What is, for example, obscene? What is, for example, harassing? What is, for example, abusive? Only the jury can say. What jury, seeing that a company or person acted fair and just, would rule against it? What jury, seeing that a person made a false claim, would rule for him or her? Juries have an uncanny ability to recognize a false claim.

On the flip side, if the defendant is cheating people, isn’t that bad for everyone. Good business helps everyone. Bad business is bad for everyone – even other businesses.  Imagine a claim against your company. Although not legally permissible, imagine that the jury is made up of your company’s customers, employees and vendors.  If you follow good business practices, you are delighted. Otherwise, maybe you are afraid of the jury.   blb (205)912-8248

Can I deduct my child support and/or Alimony payments on my taxes?

Child support payments are not tax deductable for the person who pays it and the recipient of child support is not taxed on the support received. Alimony on the other hand is tax deductable for the person who pays it and taxable for the person who receives it. jdf (205)912-8247

At what age can my child decide which parent he/she wants to live with?

In Alabama there is not a certain age that will automatically allow a minor child to choose which parent they wish to live with. The Judge can take testimony from the child and consider the child wishes; however, the judge will ultimately make their decision based on the best interests of the minor child. Jdf (205)912-8247

My ex-wife can't pay her half of the house until it sells. What can I do?

My ex-wife is not interested in the house anymore because she cannot afford to pay her half until it is sold as ordered by the Court.  Can she just Quit Claim Deed her interest to me?

Although a Quit Claim Deed is used to transfer ones interest in property to another, I avoid using any kind of written agreement that would attempt to change a Court Order.  In this case the proper way would be to do a Joint Petition to Modify.  This way the changes will be made by the Court and you will not have to worry about her bringing some type of claim later.

JDF (205) 912-8247

My girlfriend/boyfriend and I have a child together. Who has custody of the child if we separate?

The mother will have custody of the child in this case even if the father’s name is on the birth certificate.  The father will need to have paternity established through court proceedings since paternity was not established by marriage.

The court may establish paternity by testimony and/or by DNA testing.  In my experience the Court will establish paternity by DNA testing even though the parties are willing to establish it through testimony.   JDF (205) 912-8247

I have lived with my boyfriend for 6 months. Are we common law married?

"A valid common law marriage exists in Alabama when there is capacity to enter into a marriage, present agreement or consent to be husband and wife, public recognition of the existence of the marriage, and consummation."** 

So the four requirements for a valid common law marriage are:

1. capacity to enter into a marriage
2. present agreement or consent to be husband and wife
3. public recognition of the existence of the marriage
4. consummation
 

The court may look at the time couples are together; however, time is not one of the four requirements for a valid common law marriage to exist.  It is possible for couples to be common law married in one day if you meet the four requirements or live together for years and not be common law married. 

JDF (205) 912-8247

**See Waller v. Waller, 567 So.2d 869 (Ala.Civ.App. 1990). See also, Hudson v. Hudson, 404 So.2d 82 (Ala.Civ.App. 1981).

What is the difference in a uncontested divorce and a contested divorce?

The simple answer is, an uncontested divorce is when you and your spouse develop your own agreement and take it to your attorney for him/her to reduce it to writing. 

This type of divorce in my opinion is the best for a couple of reasons:  (1). It allows the parties to have control over the outcome of the divorce; rather than letting a third party determine who gets what and how much.  (2). It is the most economical option.  Something to think about is do you really want to argue a couple of hours over the kitchen table that cost $800.00 when you are paying two attorneys $200.00+ an hour?

A contested divorce is anything that is not an uncontested divorce.
JDF (205) 912-8247

How Much Child Support Will I Have To Pay?

Child support is governed by the Rules of Judicial Administration (Rule 32).  You will need to know your monthly income as well as your spouse’s and/or parent of the child involved.  Also you will need to know how much is paid for the child’s insurance, daycare, and existing child support obligations. Follow the link I have provided to see approximately what your child support obligation may be.  http://www.guidelinesoftware.com/Ala1A.asp
JDF (205)912-8247

Can I Get An Annulment?

I get asked this a lot by friends and family.  "We have been married less than 6 months can we get an annulment?"

The answer to this question will depend on whether or not the marriage was legal (meaning not defective in some way).  If the marriage was legal it would not matter if you were married one day, you would have to file for divorce.

The grounds for annulment are not rooted in statutory law.  We have to turn to case law to find what a voidable marriage is.  Here are some ways a marriage is voidable (meaning you can annul the marriage):

1.  Duress

2.  Fraud

3.  Deception

4.  Intoxication

5.  Not divorced prior to remarriage

6.  Unsound mind

7.  Pregnant by another man and did not disclose the fact to the man she married

8.  Non disclosure of a pernicious disease

9.  Non disclosure of impotence

If you have further questions concerning family law, please let me know.  JDF (205)912-8247

Get the Right Kind of Attorney

Success in divorce law often results from advanced legal strategy. Competence in divorce law is certainly necessary but not enough to secure success. The attorney to have is the one that can wield the law strategically. The earlier an attorney is retained, the more time he or she will have to put a successful strategy in place.


Regardless of how good your marriage may have been or is, do not expect the same from divorce. Although it is important that your attorney is professionally courteous, he or she must be able and willing to be tough when necessary. Divorce is breaking relationships, homes and property into parts and it is often dirty work. The right kind of lawyer will do the breaking for you. He or she will get the settlement you can live with or fight.  JDF (205) 912-8247