FAMILY
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There are two ways to obtain a divorce: 1) uncontested; 2) contested. 1) Uncontested: In an uncontested divorce the parties agree on all issues including custody, child support, property division and other matters. One attorney may be used to prepare the papers that are necessary to put into effect the agreement that the parties have reached. You should be aware, however, that the attorney in such a case can ethically "represent" only one of the parties. The other is an "unrepresented party" and may not receive "legal advice" from the attorney. The unrepresented party may wish to obtain legal advice from their own attorney. Neither party has to appear in court and the divorce may be granted on "no fault" grounds based upon the written testimony of the represented party. Once all the papers are filed with the court, the judge to whom the case is assigned will normally sign the divorce decree incorporating the agreement of the parties after the expiration of 30 days. A consultation with one of our attorneys will help you determine appropriate ways to handle the various issues in your case. Call for an appointment. 2) Contested: When agreement is not possible, the divorce process is initiated when one spouse files a divorce complaint and has it served upon the other. The defending spouse must file an answer within 30 days of his/her receipt of the summons and complaint. Typically information is sought by both sides as to assets, attitudes, legal position, complaints, weaknesses and strengths in a discovery process that will include answering written questions under oath, producing requested documents and ultimately, in many cases, the giving of sworn testimony before a court reporter in what is known as a deposition. It may also be necessary to consult experts such as psychologists, as in some custody cases, or accountants or evaluation experts when the value of a family business or a retirement account is an issue. From the time the papers are served upon the opposing spouse, it usually takes between two to eight months before the case is actually tried. It is important that you have great confidence in your attorney to guide you through this time and assist you in making crucial decisions.
Divorce Issues Custody/Visitation: In many cases the most difficult question is, "who will have custody of the children"? In a contested case the judge must determine what is in the best interest of the child. Usually this revolves around the question of who has been the primary caregiver. An initial consultation should give you an idea of the factors to be considered and where you stand. You may also wish to explore issues of joint or split custody. In Madison County, Alabama, if children are involved both parents must complete the seminar entitled "Transition in Parenting" before a divorce will be granted. Call the Family Services Center at (256) 880-1978 to make your reservation. Child Support: As a general rule, one parent will have the children the majority of the time and the other will pay child support. Using the gross incomes of the parties, the cost of daycare and the cost of medical insurance, support can be computed under the mandatory guidelines known as Rule 32. The tax exemption for the children may be negotiable and there may be extraordinary medical or educational expenses to be considered. The parents may agree to vary the Rule 32 amount, but if contested, the Court will usually apply the guidelines unless it finds specific reasons why so doing will be unfair and inequitable. Your initial consultation will explore the possible ranges of child support. Alimony/Spousal Support: Alimony is still available in Alabama to a spouse who can demonstrate a need for it to help maintain the spouse's pre-divorce life style. Factors to be considered are the length of the marriage, the relative incomes or abilities of the parties to earn, their ages, their separate estate, fault in the marriage, and other matters relating to their relative economic positions. Periodic alimony may be temporary or permanent, is deductible to the payor and is taxable to the recipient. Property Division: Alabama is not a "community property" state and there is no requirement to divide property equally. The court's burden is to "equitably divide" the property and the debts. Although no fault is required to obtain a divorce, issues of fault may be considered in matters of alimony and property division. The court may also consider the ability to pay debts, the source of the common property, the value of any separate estate and other factors. The most recent property issue is the division of retirement accounts. They are subject to division if there has been a 10 year marriage and the retirement benefit has accumulated during the marriage. Remember, divisions of 401(k)'s and pensions may be made without immediate tax consequence or penalty through the use of a Qualified Domestic Relations Order known as a QDRO. Other Divorce Issues: From life insurance to custody of the family pet. From college support for the children to restrictions on geographical location or on visitation, if you have thought about it or wondered about it, share your questions with your attorney during your consultation. Modification/Post-Divorce Actions: Custody - if there has been a substantial change of circumstances since the last custody order such that a custody change will materially promote the best interests of the children and will be so much better as to offset any inherently disruptive effects of moving the children to the new household, the court may change custody from one parent to the other. Of course, the parents may do a consensual custody change by filing a joint petition for approval by the court. Child Support - likewise if there has been a substantial change of circumstances since the last support order was entered, child support may be modified. If according to the guidelines (Rule 32) a 10% change is indicated, there is a presumption that the request for change should be granted. Alimony - Although there is no guideline as there is for child support, alimony may also be modified if there has been a substantial change of circumstances since the last decree. If you think you may have grounds to modify a decree, call us for an appointment to discuss the various factors that may apply in your case. College Support: College support is a relatively new right in Alabama. There are several factors that must be considered by the court to determine if college support will be ordered in a contested case, including the amount of the college expenses, the incomes of the parties, the child's propensity for doing college work, the relationship between the parent and child and other matters. One thing that must be kept in mind is that under current Alabama law, college support must be sought and actually filed with the court prior to the child's 19 birthday or it is barred. Grandparent Rights: In certain specified situations grandparents have the right to establish court ordered visitation with their grandchildren subject to the best interest considerations of the children. Circumstances may also dictate that grandparents sometimes seek actual custody of their grandchildren. We are happy to consult with you on these matters; and if appropriate, guide you through the process of negotiations or trial as may be necessary. Adoption: As a general rule, adoptions are very pleasant proceedings in which the parties are seeking a "win-win" situation for themselves and the child or children involved. Call Stephanie for a consultation on your adoption questions. Mediation: A growing method of resolving divorce disputes is mediation. The parties meet with an impartial third party known as a mediator, who will facilitate discussions and try to assist the parties in reaching their own agreement. In this way the uncertainties, time, expense and emotional trauma of litigation may be avoided and the parties themselves maintain control over the outcome as opposed to leaving the decisions to the court. Both parties are encouraged to obtain representation by their own attorneys or at least have access to their own attorney with whom to confer. Bill is a trained mediator through the American Arbitration Association and invites your inquiries if mediation may seem right for you. Both of the Werdehoffs have acted as attorney for the parties in mediation proceedings. Call for a consultation to explore this alternative means of divorce dispute resolution. Other Family Law Matters with which the law firm of Werdehoff & Werdehoff may be able to assist you:
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