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