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Mom and the Law

Summary:

Tonight we are honoring Mother’s Day by discussing “Mom and the Law”. There are certain areas of the law that are impactful to Mothers. For example: divorce, custody issues, child or spousal support. Please give us a call if you have any questions regarding family law.

BACKGROUND

“Alabama State Divorce Laws”

Requirements for Residency and Filing a Divorce Complaint in the State of Alabama: In the case where a defendant is a nonresident, the other party must be an Alabama resident for a minimum of six months prior to filing a complaint. Divorces complaints could be filed in the following locations; the county circuit court in which the defendant resides, the county circuit court where the two parties lived prior to their separations, or in the case of the defendant is a nonresident a complaint can be filed in the county circuit court where the other party resides. (Code of Alabama – Title 30)

Grounds for Filing a Divorce Complaint in the State of Alabama: The State of Alabama requires a Complaint for Divorce to declare suitable grounds for divorce. This foundation for the complaint will either be one that both parties agree and can prove to the court, or those that the filing spouse desires to prove to the court. Appropriate divorce grounds include:

No-Fault: A complaint for divorce that is filed on grounds where no-fault for either party exists could mean one of the following: the two parties deem themselves incompatible and can no longer live with each other; it would be impractical to reconcile and the divorce is in both parties interest as well as their family’s interest; there is a voluntary abandonment from the shared home for a minimum of one year prior to the complaint being filed.

Fault: Divorce complaints that are filed on grounds where fault exists it could involve various situations, which include: someone is completely incapacitated from entering a marriage; adultery; imprisonment in Alabama or another state; a party involved in substance abuse; a party is admitted to a mental hospital for at least five consecutive years; a woman is knowingly pregnant when she entered the marriage; domestic violence; a woman lives separately from her husband for a minimum of two years without support and she is a resident of Alabama during that two year period.

Property Distribution: Alabama is considered an “equitable distribution” state, which means that all property should be divided equally. Courts are in favor of each party coming to a mutual agreement on property and debt issues; if a settlement is not mutually reached, the court will decide on the property awards.

When the courts are left to decide how the property should be divided, they do so as equally as possible. It will be the courts responsibility to decide which property needs to be awarded as marital property. Once they assign a value to each item, they will distribute a portion to each party. Separate property will not be included in these distributions. Separate property could, for example, gift or inheritances, unless those were given to both spouses. Any marital misconduct could be considered by the court during the distribution of property.

Spousal Support: Maintenance for either spouse could also be established during a divorce proceeding. This decision of the amount is at the judge’s discretion. Things that are taken into consideration when a judge is determining a support amount include: the value of each spouse’s estates as well as their families and as much as 50% of either retirement fund as long as the marriage lasted at minimum 10 years; the marital misconduct of either spouse; any property acquired prior to the marriage cannot be considered in this amount.

Child Custody: When children are involved in divorce proceedings, it is the court’s goal to ensure the emotional trauma to the child is minimal as possible. If mutual agreement between the parents regarding the children, the court will use its discretion to determine custody. The court will consider moral character of each parent and the age and sex of the children when granting custody to either the father or the mother. However, in the case where the wife abandons the husband, the husband will maintain the custody of the children after they are seven years old.

Child Support: Alabama child support guidelines are based on the Income Shares Model for calculating child support. The monthly support amount determined by applying the guidelines is divided proportionally according to each parent¹s income. These two support amounts are then offset to establish which parent will pay the other parent for support of the child. All income is typically verified by examining past W-2’s and child support worksheets are available at the courthouse.

The court will use the state support guidelines when the two parties cannot agree on custody terms. If the two parties believe the support guidelines are not in the best interest of the children, the court will deviate from the set state guidelines to make their decision. The parents will need to verify income by filing income and expense affidavits along with their w-2’s.

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