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Child Support |
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Q: If I change jobs to a lower paying job, will I be able to have my child support payments lowered? |
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A: Not if you chose to make the change. |
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Q: I was forced to take a job in another area of work and make a lot less money because my company shut down and my vocation disappeared. Can I have my child support payments lowered? |
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A: Yes, if you can show that your profession, industry or vocation or employer no longer has a use for your skills so that you had no choice but to take a different, lower paying, job. |
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Q: If I quit my job, will I be able to ask the Court to terminate my child support? |
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A: No, not if you voluntarily left your job. |
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Q: I pay my child support based upon 17% of my income. Now my ex wants me to pay 50% of all child care costs. Do I have to pay this? |
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A: Generally, child support additions (some people call them add-ons) are paid in proportion to your income and your ex's income. So if you both make the same amount of money, you would share the cost of the add-on 50-50. Add-ons can include educational expenses (tutoring, for example), extra-curricular activities expenses (music, ballet, karate lessons), child care, summer camp and religious instruction. |
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Q: If my child comes to live with me, can I just stop paying child support? |
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A: No. You must first petition the Court to terminate child support citing the change in circumstances that warrant the reduction in child support. You always need the Court's permission to stop paying support and under the current law, if you fail to ask permission, the Court can't forgive any arrears that accrue prior to your filing a petition. A Court Order remains effective until the Court terminates (or changes) the Order. |
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Q: My child is working full time and is therefore emancipated, can I stop paying my child support? |
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A: No. You may be right that your child is emancipated, but you must ask the Court to make that determination, or you may suddenly find yourself owing substantial arrears. Whatever Court Order for support has been issued, it remains in effect until the Court changes it, no matter how circumstances change. |
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Q: I pay child support to my ex-spouse for our child. I have since remarried and my new spouse and I have had a child. Can I have my support payments to my first spouse lowered? |
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A: It depends. The Courts believe you knew what your obligation was to your first child before having more children. The question comes down to a balancing of resources available to the children of each household. For example, has your ex-spouse remarried? How does your combined income compare with your ex-spouse's combined income (if he/she has remarried)? If your combined income is less than his/her combined income you may be able to have your child support lowered. |
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Maintenance/Alimony |
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Q: What is maintenance? |
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A: Maintenance is what used to be referred to as alimony. Maintenance is an award by the Court of support to your spouse for a fixed period of time (three years, 5 years, etc.) or for an indefinite period of time which can be for as long as he/she lives, you live or until he/she remarries, whichever comes sooner. |
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Q: How long is maintenance paid for? |
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A: It depends. The Court takes several factors into consideration such as how long will it take for the supported spouse to become self-supporting. The Court will consider whether schooling is necessary, what the health of the recipient is, how old is he/she, and your financial ability to pay the support, etc. |
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Q: What is a usual duration of maintenance? |
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A: While there is no set rule, the decision is discretionary with the Court, and each case must therefore be decided on it's facts, three to five years is a very common award unless a marriage is ten years or less. |
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Q: When will a Court order non-durational maintenance? |
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A: Generally in long-term marriages (more than 10 years) where the recipient is in his/her late forties or older, with no expectation of becoming self-supporting, and the party paying support has the financial ability to do so. In such cases, the Court may order that maintenance continues until death, remarriage or upon living with another person that the recipient holds out as a spouse. |
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Q: Who pays taxes on maintenance? |
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A: It is normally taxable to the recipient as income and a deduction to the person who pays it. (This is different than with child support, where there is no deduction for the parent paying and no taxable income for the parent receiving). |
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Q: How does a Court determine the amount of maintenance? |
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A: The Court looks at the reasonable needs of the recipient (based upon the prior standard of living), the income and assets of the recipient balanced against the income and assets of the party paying the support. While the Domestic Relations Law lists many factors to consider in making the award it tends to boil down to an analysis of reasonable needs verses ability to pay. |
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Q: How much discretion does the Court have in determining the amount and duration of a maintenance award? |
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A: Tons. Unlike child support, there are no set guidelines and the practical reality is there can be differences in awards based upon the same facts depending on how the court sees it. How your attorney presents the facts, may well affect the Court's determination. |
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Custody & Visitation |
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Q: My ex-spouse lives in another State with our children; the state where we lived together and where we got divorced. Can I take her to Court in Alabama to enforce my visitation? |
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A: No, you have to go back to the State in which she lives. |
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Q: My ex-spouse lives in another State with our children, but our divorce was in Alabama . Can I take her to Court in Alabama to enforce my visitation? |
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A: Yes, but the Court may decide that the State your ex-spouse lives in now has jurisdiction instead of Alabama. It depends on how long she has lived there, and where any other actions pertaining to your children has taken place. |
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Q: I have custody of my children and my ex-wife constantly tells me she can get custody at anytime just because she is the mother. Is this true? |
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A: Probably not. Document and record (if possible) what may appear to be blackmail and/or extortion. The Courts do not like that sort of conduct. The longer the children have been with you, the harder it will be for her to get a change of custody. The issue is always the children's best interests, which include continuing in the same school, maintaining the same friends, being in the same home with the same care giver, etc. If the children are well behaved, if they are not failing in school, if they are not being neglected, etc. the children will probably remain in your custody. Only some exceptional circumstance would warrant a change. |
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Q: My ex-spouse constantly withholds visitation, or schedules other activities for my children during my scheduled visitation time. What should I do? |
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A: Ask the Court for a change of custody or at the very least a very specific visitation schedule if you do not already have one. |
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If you have a specific visitation schedule, call the police when visitation is refused. Get a police report. Document the failure to give visitation (bring a friend along for the pick-up). Send your ex a note describing the problem (Dear Sally: The Divorce Judgment says I get Johnny on Mondays, but when I went to get him on Monday, you refused to give him to me. If this happens again, I will have no choice but to go to Court. Please live up to your obligations under the Judgment.) |
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If the problem cannot be worked out, application can be made to change custody. A constant denial of visitation may be a case for finding a parent unfit. In addition, ask the Court to hold your ex-spouse in contempt of Court for denying you your lawful right to visit with your child. If he/she does not change their ways, the Court might just change custody. |
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Q: My ex-spouse has custody and tries to dictate terms and activities for my visitation. Can he/she do that? |
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A: No, unless the Court specifically said they could. Otherwise it is interference with your visitation rights and you should go to Court to stop it. On the other hand, if the spouse wants the child to play in Little League, which plays every Saturday, a Court might not be as sympathetic to you (i.e., you bring the child to Little League on your weekends). |
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Q: What do I do if my ex-spouse withholds visitation? |
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A: Immediately call the police and have them issue a police report. Do not get into an argument. This could lead to your arrest. If you do not have an Order of visitation, contact an attorney to obtain a Court Order for visitation. If you do have an Order of visitation, contact your attorney to get Court enforcement and a charge of contempt. |
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Where visitation disputes can be expected to arise, I always like to seek very specific visitation Orders so there are no questions about when you are entitled to visitation. |
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Also, if you wait too long to do this, the Court may think you do not really care, so why should they? |
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Q: Can I withhold child support if my ex-spouse withholds visitation? |
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A: Big Mistake!!! The Courts view support and visitation as separate issues and the Court will come down hard on you if you do. However, you can petition the Court to allow you to withhold spousal support if visitation continues to be withheld. |
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Q: I think my ex-spouse is planning to move with our children to another state, what can I do? |
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A: First consult your Judgment of Divorce for any provisions concerning relocation. If no provision exists, ask your attorney to immediately go to the Court and ask that your ex-spouse be restrained from moving the children out of the county in which he/she now resides with the children, without first obtaining your written consent or permission from the Court. It is easier to stop your ex-spouse from moving than it is to get your ex-spouse back after he/she moves. |
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If you find out too late, and he/she has already moved, move immediately in Court and petition to have your ex-spouse ordered to return the children to the county in which he/she had lived. It is always best to have the assistance of an attorney in this type of situation. |
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The trend in the law in this area is to limit relocation of the child if it will seriously impact on the visitation by the non-custodial parent. |
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Forensics & Guardian Ad Litem |
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Q: What is forensics? |
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A: Forensics is a process which uses psychological experts to determine who is the best parent for the children. Who is more in touch with the children's needs, emotionally, psychologically and socially? |
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The Court will appoint a forensic evaluator, usually a psychologist, but sometimes a social worker of a psychiatrist. This professional interviews both parents and the children and will sometimes interview or speak with third parties who might shed some light on the relationship between the parents and children. Usually they want to see the child/children alone and with each parent. They will also want to meet with each parent separately. The evaluator wants to know why you are the best parent for the children. |
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A forensic evaluator's recommendations are listened to seriously by the Court, but are not always followed. Some forensic evaluator's take a very active role in the course of the case. Some do not. Some are biased. Some are not. You must disregard this and take the forensic evaluator very seriously, but remember that the Court determines custody, not the evaluator. |
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Q: What is a guardian ad litem? |
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A: A guardian ad litem is an attorney appointed by the Court to represent your child's interests. If your child/children are old enough to express an opinion on what they want in terms of custody and visitation, the guardian ad litem is obligated to advocate that position to the Court. |
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On the other hand, if the guardian ad litem believes that the child's desires may not be in their best interests, the guardian ad litem should advise the Court why he/she believes this. The role of the guardian ad litem varies somewhat throughout the State, and the difference can be important. A guardian ad litem's advocacy is taken very seriously by the Court, but not always followed. Some guardian ad litems take a very active role in the course of the case, some do not. Some are biased, some are not. Always treat the guardian ad litem with respect and courtesy and encourage your children to ask them any questions they may have. |
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Hiring a Lawyer |
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Q: How do I know which attorney to hire? |
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A: First, you want to find an attorney whose practice is primarily in the area of family and matrimonial law. You would not ask a dermatologist to perform brain surgery, so do not be afraid to ask a lawyer how experienced he/she is with family law matters. In addition, an experienced family law attorney is cheaper, because he or she will not charge you for "research" that a non-specialized attorney might have to perform. |
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Second, you want the attorney to be familiar with the Court your case is in. This does not mean the lawyer has to be a drinking buddy, but every Judge and every County has their own way of doing things. It is obviously better if your attorney is familiar with those practices. |
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Third, you want an attorney who believes in you and whom you believe in and trust. You will want your attorney to listen to what you have to say and be sensitive to your needs. If you are uncomfortable with the lawyer, do not hire him or her, but on the other hand, you are looking for an advocate whom you can rely upon and trust, but not necessarily a friend who will feel your pain. You do not want someone who is going to tell you what you want to hear when it's not good advice. |
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Fourth, if a lawyer promises you the world, walk away. Nothing is certain in Family Law, there are too many variables. You want an attorney who will level with you and who will honestly assess your case and give you his or her honest opinion as to what you can expect to happen. |
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Finally, and most important, you will want an attorney who will stay with you throughout the proceeding from beginning to end. You do not want to be passed you off to someone else in the office, who may not be as familiar or experienced as the attorney that you met with originally. You also do not want to have to retell your story over and over again, and have the experience of paying for the privilege. |
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Q: How do I know which lawyer's prices are better? Some want more money up front. Some want more per hour. How do I know whom I can afford? |
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A: Price is an issue, but not the most important issue. Actually, paying more money per hour (or a larger retainer) will not guarantee you better representation. Often you are paying for an attorney's reputation or celebrity. It gives you no assurance that the person you hire will actually be the attorney who handles your case. |
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In all cases you will have a Retainer Agreement with your attorney in writing; you should also have a statement of your rights as a client, the law requires that. It is customary to pay a retainer fee in advance, how large a retainer fee you pay is not all that important. Attorneys vary as to how much they require up front, but that's not as important. In most cases your final cost will exceed the amount of the retainer (the amount of money you pay in advance). |
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Generally, your attorney will set an hourly rate for his services. Those rates can range from $125.00/ hour (in rural counties for less experienced attorneys) to as much as $700.00/hour. Paying a larger hourly fee will not necessarily guaranty you a better attorney, however like most things in this world, you get what you pay for. |
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Q: How much will it cost? |
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A: Ethical rules in Alabama require an attorney to provide a "good faith" estimate of the fees a client can expect to pay, but it's one of the most difficult things an attorney is asked to do. The story I tell my client's is about the guy who hops into a cab and asks the driver "How much?" The cabbie turns around and says: "Where to?" But the guy wants the price before he tells the cabbie his destination. That's the quandary the lawyer is in. |
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An experienced lawyer can tell a prospective client the minimum that can be expected, but the maximum will depend on the other side, whether the case is settled or tried, the attorney on the other side and the judge. You can help an attorney give the best estimate by being honest in accessing the issues and the relationship you have with your ex or former partner. |
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Q: Are there ways I can keep my fees down?%A: Yes. Communicate efficiently with your attorney. E-mail is great; your attorney can read it when it is convenient and when he or she has enough time to respond (as opposed to unscheduled phone calls). Keep notes and records. Make outlines. Respond promptly to questions from your attorney. Insist on detailed bills and review them promptly after you receive them. If you have questions about your bills, ask! |
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Pay your bills promptly, and if you cannot, be honest and tell your attorney your situation. Lawyers are people too. They are subject to their own expenses and cash flow pressures. Their landlords expect to get paid each month regardless of whether their clients are paying, so if you cannot pay, do not ignore the problem, confront it. Unless money is no object, be careful where several attorneys will work on your case. This sometimes leads to a lot of intra office conferences which you will be expected to pay for and which usually just means one attorney telling the other what is going on in the case. |
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Miscellaneous |
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Q: Can I tape-record my ex-spouse's conversation without his/her knowing, or would that get me into trouble? |
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A: As long as you are a party to the conversation, whether on the phone or in person, you can tape anyone. This includes saving answering machine messages. |
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Q: I have heard that even if you can prove the things your ex-spouse says by having tape-recorded him/her, the Judge never wants to listen to the tape. So what is the point? |
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A: When you do tape record your ex-spouse, label the tape with date and time, and then transcribe the tape word for word. The judge is likely to read a transcript knowing the tape is available to confirm the contents. It can also be used to discredit your ex-spouse on cross-examination, and prove he/she is not believable. |
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Q: Can I tape my child's phone conversations with my ex-spouse? |
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A: Only if you want to go to jail! You are you not a party to these conversations and you would be eavesdropping, which is a crime. In addition, you will be violating child's confidence and right to privacy which will almost certainly anger the child and the Judge. |
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Call 1-205-222-5543 today for a free consultation. |
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