Since the Supreme Court of Alabama has reversed the holding in Bayliss,it has raised some issues that the Court will most likely have to address in the near future. The most obvious being how to deal with the fact that in Alabama the age of majority is 19. This age is more than is required for most any adult dealings. For instance, at 18 a male must register for the draft and both sexes are able to register to vote.
By the age of majority being 19 in Alabama, it obligates non-custodial parents to continue child support payments until then or the minor child becomes self-supporting. It raises the interesting question of: now that a noncustodial parent cannot be forced to pay post minority support, why would they have to continue to pay support to a custodial parent in a situation where the 18 year old child is enrolled and attending a university full time?
Child support is paid to the custodial parent, not the child, and is for the maintenance and support of that child. If the child is 18, graduated high school, attending college on a full time basis, and living away from home, why is there a need to pay the custodial parent? Currently there is no provision that would allow direct payment to the minor child in College so that the support may be used as needed by the 18 year old student. Also it must be considered that in most cases even without an order of post minority support most parents gladly assist in college expenses. That parent should not be obligated to pay child support once the 18 year old enters college full time and lives away from home. There are no assurances in place that the child would receive any benefit from that extra year of payments.
The fact is the Court probably can’t resolve this issue because the question only raises more issues. The best solution would be for the Alabama Legislature to reduce the age of majority in Alabama from 19 to 18 as is the case in many other states.
In Alabama child support is governed by Rule 32 of the Alabama Rules of Judicial Administration. The last revision of the guidelines became effective on January 1, 2009. The main change made was an extension of the guidelines to cover gross monthly income amounts in excess of 10,000.00. Currently the guidelines are calculated to apply to gross combined incomes of up to 20,000.00 per month.
Each parent is responsible for a percentage of the whole amount calculated. This percentage is determined by taking each parent’s monthly gross income and dividing it by the combined gross income of both parents.
Child support is awarded to the custodial parent per the percentage obtained by application of the guidelines and it is designated to meet the everyday basic needs of the minor child. The non-custodial parent will pay this percentage in monthly payments to the custodial parent. The custodial parent is responsible for his or her percentage also.
The “rub” so to speak with child support in Alabama is that even though the custodial parent has a percentage to pay there is no method to determine if that amount of money has been spent for the benefit of the minor child. The non-custodial parent however must be accountable for all payments made and can suffer severe consequences if the child support is not paid. The non-custodial parent may have his or her Alabama Driver’s License suspended, he or she may be held in contempt of court, have wages garnished by a withholding order, or may be placed in jail. In addition the non-custodial parent may not claim the payment of child support as an expense on his or her income taxes and the custodial parent is granted through the guidelines the ability to claim the minor children each year for income tax purposes.
There are only a couple of circumstances where the child support guidelines can be sidestepped and the application be avoided. Those are found in Rule 32 (A)(i)(ii) , and are as follows: “(i) A fair, written agreement between the parties establishing a different amount and stating the reason therefore; or (ii) A determination by the court based upon evidence presented in court and stating the reasons therefore, that application of the guidelines would be manifestly unjust and inequitable.” Rule 32 of the Alabama Rules of Judicable Administration.
These exceptions are not automatic and are at the discretion of the trial Judge in each case. Rarely does the court find that no child support should be awarded. Most Courts will award an amount of child support consistent with the guidelines.
It is also important to note that child support applies to all persons who share a biological child in common. There is not requirement that the parents have to have been married. If a couple has a child out of wedlock and have ceased their relationship the child support guidelines still apply. This is true even if the father is not listed on the birth certificate. The mother may file a petition for child support with the court and have the father appear. A paternity test ordered by the court will determine if the Child is the Father’s and if so the guidelines will be calculated and applied.
In summary, child support in Alabama is rigorously applied and monitored by the courts and other agencies. This is done to ensure that the minor children rather than the parents have sufficient means to live and have basic necessities provided to them by holding the parents responsible for their children and their care.
The decision to seek a divorce is normally based upon several factors. While the main reason is often the emotional situation between the parties, others include finances, issues surrounding children, and general discontentment.
If a person is considering a divorce, there are some things he or she should consider doing in preparation. The first is to create an emergency financial fund since divorces can create problems concerning living arrangements, bill paying, and attorney’s fees. It is important that the fund contains enough money to pay the current mortgage, or rent, on a new residence in case he or she is the one who will move out.
If there are children of the marriage, consideration should be given to paying temporary child support or potentially needing to support the children alone until a temporary order can be put into place. The ability to pay existing financial obligations, as well as any new ones, should be considered and prepared for also.
Divorce, or even a pre-divorce separation, can cause severe emotional stress on a household and consideration should be given on how to deal with it. Counseling for yourself and any children is often recommended. It may provide certain coping exercises and skills that will ease the transition from being a family unit, to living as a divorced family/couple.
Finally, in a pre-divorce preparation all financial records should be obtained or copies made. These should include tax filings for the last 3 years and statements of all current bills or credit card accounts. The involved parties should also be prepared to provide account numbers and information on all marital bank accounts; as well as the current value of checking accounts, savings accounts, money market accounts, retirement accounts, or any other accounts held by the parties. In addition there should be a list created of all real property owned by the parties along with: the debt owed, how much equity each holds, and copies of deeds or titles if possible.
Preparation of this type will help you and your attorney deal efficiently with your case. More importantly being prepared will help you maintain the mental health of your family while protecting your credit and lifestyle as much as possible.
The Alabama Supreme Court made a landmark decision in 2013 when it struck down the decades old Ex parte Bayliss ruling. This decision should have long lasting effect on future domestic relations cases in the state. In Ex parte Bayliss, the court at the time established under what parameters a non-custodial parent could be forced to pay for the college education of his or her children after the reached the age of majority.
On its face the original Bayliss ruling seemed illogical due to the fact that all support obligations to a minor child cease upon the child reaching the age of majority, which in Alabama is 19. Many non-custodial parents were forced to make college payments that they could not afford because it was ordered in the original divorce decree or ordered in a hearing for post minority support.
Notwithstanding the legal arguments against the Bayliss rule, there was always one common sense argument:
Many families who are intact and don’t suffer a divorce cannot afford to send their children to college. So how can the court order you to simply because your are a divorced parent?
Chief Justice Roy Moore wrote the opinion of the Alabama Supreme Court that struck down application of Bayliss. He noted primarily that Bayliss was unconstitutional and amounted to the Court legislating law which exceeded the scope and authority of the Judicial branch.
The Court did not however make the ruling retroactive meaning it will only apply to new divorce cases only.
Recently the topic of same sex adoption has arisen in Alabama. The issue comes from a same sex couple who may have gotten legally married in a state that recognizes same sex marriages. That couple then for whatever reason relocates to Alabama. The couple is a female couple and one of them gets pregnant, and the other wishes to adopt the child by claiming that she is the spouse.
To date all Alabama courts have denied these request and upheld the denials on appeal due to Alabama not recognizing same sex marriage. This includes same sex marriages that may be valid in other states.
On many occasions, I get confronted with a spouse who does not want a divorce but the other spouse has either filed for one with a divorce attorney, or is at least contemplating filing for divorce. The reality is that no matter how bad you want to save or salvage your marriage, if one spouse wants a divorce and sues for it, then under Alabama Law they will be able to divorce you even against your wishes.
Obviously this does not seem fair to the spouse who wants to save the marriage however I think that the this rule is sound due to the potential problems that could arise if spouses were forced to remain married until both of them were ready for a divorce.
What should you do if your spouse refuses to bring back the minor children at the end of his or her visitation period? First do not panic. Call the non-custodial parent and inquire as to the whereabouts of the child or children and when they will be available for you to pick up. If that does not work or the non-custodial parent refuses then your course of action is by legal means.
Contact an attorney and tell him the situation and they can advise you on a proper course of action. Some possible legal remedies are filing documents for the immediate return of the minor child or children or filing to have the non-custodial parent held in contempt of court for failing to abide by the court’s order concerning visitation. Finally depending on the gravity of the circumstances you may ask the court to order the local sheriff’s department to accompany you to retrieve the minor child or children if there is a risk of danger to you or them. This is not an exhaustive list but just some of the usual legal remedies available for these circumstances.
If during a divorce questions arise as to the finances of the family or of one spouse in particular there are methods to conduct “discovery” on those issues and attempt to uncover the facts.
Discovery is information sought by each side in a divorce action to assist them in the divorce trial to make sure a fair representation is being made concerning the facts of the case. It can come in several forms; the most used form of discovery is interrogatories. Interrogatories are a set of questions sent to the opposing side that must be answered under oath and a written response returned to the sending party. Also many times a production of documents request will be sent to aid in discovery. In a production request you can ask for bank records, financial statements, video, photographs etc. These are but two of the most common methods of obtaining discovery in divorce cases.
For more information about “discovery” methods contact the divorce attorneys of Boles Holmes White today.
If a divorced parent wishes to change a part of the original divorce order then they must understand the limitations. First any property settlements are final after the 42 day appeal time has expired. The only issues that are subject to modification are; child support, visitation, and alimony. The first two are always available for modification while alimony may require a certain set of facts specific to the particular case to become modifiable.
Generally child support may be reviewed and recalculated upon the occurrence of a 10% increase or decrease in either party’s income or some other material change in circumstance that would affect the support amount. Visitation may be reviewed upon the allegation of a material change in circumstance that is adversely affecting the children or is causing an interference with a party’s ability to have visitation with the minor child or children.
What is joint legal custody? In a divorce this is a common term. It is used to describe the parties’ legal standing regarding the minor children.
Unlike sole custody where one parent keeps all control legal and custodial over the minor child or children; joint custody allows both parents to be on a somewhat equal footing regarding the minor children. In a joint custody arrangement both parents enjoy being able to speak with doctors, school teachers, counselors, etc and are able to have access to medical and school records. The actual physical address of the minor child will lie with one of the parents and the other will have visitation. It is an important tool used to keep both parents involved with the minor children as much as possible so that they may keep the bonds made with the children intact.